Food Inspector, Changanacherry Municipality vs K.A. Augusthy

M.M. Parbed Pillay, J.—Food Inspector, Changanacherry Municipality is the appellant. He filed the complaint against the respondent (accused) alleging that he sold tea dust on 27-10-1981 and that on analysis it was found to be adulterated. Trial court found him guilty and convicted and sentenced him. Sessions Judge allowed the appeal and acquitted the accused. The learned Sessions Judge agreeing with the trial Court held that the Food Inspector has strictly complied with the provisions of the Prevention of Food Adulteration Act and Rules and that there is nothing to show that he has violated any of the provisions of the Act or Rules.

Sessions Judge acquitted the accused mainly on the ground that he was denied of a very valuable right of proving warranty in his favour as the additional second accused was discharged. On the motion of the accused owner of Thoompumkal Traders viz. Aliamma Joseph was impleaded in the proceedings u/s 20A of the Act. She entered appearance and produced a book containing the carbon copy of the bills. On going through it the learned Magistrate held that there is no prima facie ground to proceed against the second accused. Thereupon the second accused was discharged u/s 245 (2) of the Crl. P. C.

Contention of the respondent is that discharge of the second accused from whom he purchased the tea dust has caused serious prejudice to him. This has been accepted by the learned Sessions Judge, Counsel for the appellant submitted that even if Ext. D-I is assumed to be a true and proper warranty the respondent cannot succeed in the case as there is no shred of evidence to hold that the tea dust purchased by him was kept in the same condition as he purchased it.

P. W. 1, Food Inspector deposed that he went to the shop of the accused on 27-10-1981 and disclosing his identity purchased 375 gms of tea after Paying Rs-640/-. It is further stated by him that after complying with the legal formalities he sent one sample to the public Analyst and that the Analyst''s report disclosed that it is adulterated. P. W.l stated that he asked the accused from where he purchased the tea and the accused told him that he does not have any bill with him. Accused did not produce Ext. D-l bill before P. W. 1. When P. W. 1 was cross-examined he was confronted with Ext. D-1.

Section 19(1) of the Prevention of Food Adulteration Act makes it clear that it shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale Section 19 (2) States that the vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves that he purchased it from a duly licensed manufacturer, distributor, or dealer in a case where licence is prescribed for the sale thereof. Rule 50 (I) (h) makes the position clear that so far as tea is concerned licence is necessary for its manufacture, sale, stock, distribution or exhibition for sale. Thus to invoke Section 19 (2) it must be established by the accus d that he purchased the tea dust from a licenced manufacturer, distributer or dealer. Section 19 [2] [b] enjoins a duty on the vendor to establish that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it. Only in that case the vendor can avail the defence that he is protected by the warranty. The mere production of a bill or invoice or warranty will not be sufficient to hold that the vendor is entitled to be acquitted on the ground of warranty. A reading of Section 19(2) would show that a vendor can raise a valid defence only if he established that he purchased the article of food from a duly licensed manufacturer, distributor or dealer in a case where licence is prescribed for the sale thereof. He can also invoke the benefit of the Section if he establishes that he purchased the article of food from any manufacturer, distributor or dealer with a written warranty in the prescribed from in a case where no licence is prescribed for the sale. It is also necessary that he should prove that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it. The burden of proof is on the accused to establish his plea u/s 19 (2) of the Act.

The accused does not have a case while questioned u/s 313 Crl. P. C, that the tea was properly stored and that he sold it in the same state as he purchased it. Not even a suggestion was put to P. W. 1 in cross examination to that effect. Accused can successfully claim protection of warranty only by adducing positive evidence to the effect that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it. Section 19 (2) (b) makes the position very clear. Such a provision is really necessary as otherwise it would be possible for any person to defeat the provisions of the Act by purchasing article of food covered by warranty and thereafter adulterating it on the assumption that he could do so with impunity. To avoid such a contingency Section 19 (2) (b) has been enacted As already pointed out there is not even slender evidence to hold that the article of food while in the possession of the accused was properly stored and that he sold it in the same state as he purchased it. Therefore, assuming Ext. D-l authentic the accused cannot succeed as there is total lack of evidence to hold that the tea purchased by him from Thopmpuakal Traders was properly stored and that he sold it in the same state as he purchased it.

Ext P-9 Analyst''s report shows that the sample analysed does not conform to the standards prescribed for tea under the Prevention of Food Adulteration Rule 1955 and is therefore Adulterated. On microscopic examination it was found that the sample consisted of a mixture of tea and cashewnut endocarp, the latter about 50 percent. The learned Sessions Judge went wrong in acquitting the accused. The judgment of the Sessions Judge is hereby set aside and that of the trial Court is restored. The appeal stands allowed.