R.K.Trading Company vs State

G. P.Mathur, J.—This petition under Section 482 Cr. P.C. has been filed for quashing the proceedings against the applicant in Criminal Case No. 462 of 1980 which is pending in the Court of Munsif Magistrate, Ghazipur. The Food Inspector, Ghazipur filed a Criminal Complaint alleging that he purchased Mustard Oil from a sealed tin from the shop of Paras Nath on 17121979. At the time of taking of sample Paras Nath informed that he had purchased the tin from M/s. R. K. Trading Company K47/344 Bisheshwarganj, Varanasi vide Bill No. 45388 on 13121979 and the cash memo was also given by him. The Sample was sent for analysis and according to the report dated 27111980 of the Public Analyst to U.P. Government it did not conform to the prescribed standard and was thus adulterated. In the complaint, Paras Nath from whose shop the sample was taken and also the Prop, of M/s. R. K. Trading Company, K. 47/344 Bishewshwargani, Varanasi were arrayed as accused. Shri Vinod Prasad, learned Counsel for the applicant has submitted that the sample was taken from the shop of Paras Nath which is situate in Nandganj Bazar in the district of Ghazipur while the applicant M/s. R. K. Trading Company carries on business as wholesaler at Varanasi and he would be liable only if vendor (Paras Nath) could establish that he had purchased the tin from which sample of Mustard oil was taken with a warranty which was given by the applicant. It is urged that Rule 12A of Prevention of Food Adulteration Rules (for short Rules) provides that a distributor or dealer selling an article of food to a vendor shall give a warranty in Form VIA and in the present case the document produced by the vendor does not meet the requirement of Form VIA and consequently it cannot be recognised as a warranty and the prosecution of the applicant is wholly illegal. Section 19 of Prevention of Food Adulteration Act (for short Act) enumerates the defences which may or may not b^ allowed in prosecutions under the Act. Subsection 2 of this section lays down that a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded articles of food if he was proved that he purchased the article of food from a licensed distributor or dealer with a written warranty in the prescribed form and 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 word ''warranty'' has not been defined either in the Act or in the Rules but has been defined in Section 12(3) of Sale of Goods Act as under:

�A warranty is a stipulation collateral to the main purpose of the contract, the breach of which gives rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated.�

Rule 12A which was substituted on 871968 no doubt provides that every manufacturer, distributor or dealer selling an article of food to a vendor shall give either separately or in the bill, cash memo or label a warranty in Form VIA Section 14 of the Act was amended by Act No. 34 of 1976 w.e.f. 141976 and a proviso wasadded to the following effect:

�Provided that a bill, cash memorandum or invoice in respect of the sale of any article of food given by a manufacturer or distributor of, or dealer in such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under this section.�

The proviso to Section 14 creates a fiction that a bill, cash memo or invoice given by a distributor or dealer to the vendor shall be deemed to be a warranty. The proviso does not make any reference to Form VIA of AppendixA to the Rules. Prevention of Food Adulteration Rules are in the nature of subordinate legislation which have been made by the Central Government in exercise of powers conferred by Section 23 of the Act. A Rule can never override the provisions of the Act under which it has been made and in the event of a conflict it is the Act which will prevail and not the Rules. It has been held in Central Bank v. Workmen, AIR 1960 SC 12 and Babaji Kondaj v. Nasik Merchants Cooperative Bank, AIR 1984 SC 192, that the Rules have to be consistent with the provisions of the Act and if a Rule goes beyond what the Act contemplates, the Rule must yield to the Act. The Legislature in its wisdom amended Section 14 by Act No. 34 of 1976 and added a proviso thereto under which a bill or cash memo given by a distributor or dealer to a vendor is deemed to be a warranty. Therefore, even if the vendor is unable to produce a warranty in Form VIA the bill or cash memo given to him by the distributor or vendor will be enough to satisfy the requirements of subsection (2) of Section 19 of the Act. The contention that vendor (Paras Nath) having not produced a warranty in Form VIA, the prosecution of the applicant, who is a distributor, is illegal therefore, cannot be accepted.

In Vishnu Avatar v. Slate 1978 Cri. L.J. 1978 (All) the vendor had purchased a food item form a distributor against a bill but had not obtained a warranty in prescribed from before addition of proviso to Section 14 and he was convicted by the trial Court. During the pendency of appeal, amending Act No. 34 of 1976 came into force by which the proviso was inserted to Section 14 of the Act. It was held by this Court that the vendor would be entitled to the benefit of the proviso under which bill shall be deemed to be a warranty, notwithstanding the fact that the same was not in Form VIA. In Niranjan Behra v. Satya Narain, 1981 Cri. L.J. 1790 after placing reliance upon, the aforesaid decision of this Court, it was held as follows:

�Where a bill, cash memo, or invoice is given at the time of sale, a separate warranty in Form VIA under Rule 12 is unnecessary. The bill, cash memo, or invoice will be deemed to be a warranty even though it does not contain the details as to the nature or quality of the article sold. So even if there is no written warranty in the prescribed form, the production of credit bill is a sufficient compliance of the law which gives protection from prosecution to the shop owner who purchased the articles from distributor under Section 19(2).�

Similar view has been taken by Andhra Pradesh High Court in Chunduh Gopal Krishna Murthy v. State, 1978 Cri. L.J. 1365. Thus, it is well settled that in order to constitute a valid warranty the same need not be in Form VIA as prescribed in AppendixA to the Rules and a bill or cash memo or invoice given by a distributor or dealer would be enough. Learned Counsel has placed reliance on Murlidhar Shy am Lal v. State of Assam, 1996 SCC (Cri) 485,1996 JIC 432 (SC) in support of his contention that only a warranty in Form VIA can constitute a valid defence for the dealer. I have carefully gone through the authority and in my opinion no such proposition of law has been held therein. In fact, no cash memo had been filed by the dealer in the said case and the Court consequently rejected his defence by making the following observations :

�In this case, we cannot make any guess as to what would be the nature of the language used in the cash memo which was not filed, in the absence of any specific recital therein.�

There is another aspect of the case which has a bearing on the controversy raised. The vendorParas Nath from whom the sample was taken has not been impleaded as a party in the present petition. It is a defence of the vendorParas Nath that he purchased Mustard oil tin from M/s. R. KL Trading Company. He produced a warranty which is the cash memo issued by the applicant showing sale of tin to Paras Nath on 16121979. The question as to whether the cash memo would amount to a warranty or not will have serious bearing on the vendorParas Nath. The State or the Food Inspector is not at all concerned with the validity of the warranty nor they are required to lead any evidence on this point. The State has only to prove that the sample of article of food was taken by the Food Inspector in accordance with the Rules and the said sample was found to be adulterated on analysis. If the vendor is able to prove that he had purchased the article of food with a warranty he shall not be deemed to have committed an offence and in such a case the distributor or dealer would be held liable. Therefore, it will not be proper for this Court to record any finding on the. validity of warranty produced by the vendor in his absence. The applicant having not impleaded the vendorParas Nath as a party to the petition, the same suffers from a serious defect of nonjoinder of necessary party and is liable to be dismissed on this ground alone.

For the reasons mentioned above, the petition fails and is hereby dismissed. Further proceedings in the case were stayed by this Court on 1721982. The stay order is vacated and the trial Court is directed to dispose of the case as expeditiously as possible.

The office is directed to send a copy of this order to the trial Court within a week. Petition dismissed.