M/S Sri Mahavir Agency & Anr. v. the State of West Bengal & Anr.

RAJESH BINDAL, J. 1. The appellant was accused in a complaint filed under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulter ation Act, 1954 (for short “the Act”). He was convicted and sent enced to undergo rigorous imprisonment for a period of six months by S enior Municipal Magistrate, Calcutta. In appeal, the conviction and sentence of the appellant was upheld by the Additional District & Sessions Judge, Fast Track Court, Calcutta vide judgment dated 26.06.2009 in Criminal Appeal No.106/2007. The order was challenged before the High Court at Calcutta by filing a revision petition bearing C.R.R. No.64/2014 which was dismissed on 08.06.2016. The judgment has been impugned before this Court. 2. Learned counsel for the appellant raised a legal argument and submitted that the appellant is merely a vendor who purchase d food item pan masala, namely, ‘Pan Parag’ from M/s Kothari Pouches Limited, the manufacturer, in sealed packaged condition and sold it to its customers. In terms of Section 14 of the Act, the manufacturer had given warranty about the nature and quality of the product sold by the petitioners. It was in the form of a bill having a specific note with reference to the warranty. The protection is available to the appellant in terms of Section 19(2) of the Act which provides for defences which may be av ailable in prosecutions under the Act. The Courts below failed to c onsider the aforesaid legal argument and upheld the conviction. M/s SRI MAHA VIR AGENCY & ANR. v. THE STATE OF WEST BENGAL & ANR. 3. On the other hand, learned counsel for the respo ndents submitted that it is a case in which samples of pan masala namely ‘Pan Parag’ were collected from the business premises of Chanda Aggarwal, buyer of pan masala from the appellant. Initially complaint was filed against Chanda Aggarwal and Binod Agarwal. However, on an application filed by them, the appellant was impleaded as an accused as they had produced the bill showing purchase from the appella nt. Only the appellant was convicted in the said matter as Chanda Aggarwal and Binod Agarwal were given benefit of protection under Section 19(2) of the Act. The samples of seized pan masala were tested twi ce, once by the Public Analyst for Calcutta Municipal Corporation and then by Central Food Laboratory at CFTRI, Mysore on the application of the appellant. Both times the sample did not conform to the standards laid do wn for ‘Pan Masala’ under the Act and Rules framed thereof and the tests failed. Hence, the offence was clearly established. 4. It was further submitted that the appellant cannot be allowed to go scot-free only on technical grounds. A warranty has to be giv en by the manufacturer or distributor in the prescribed form. In t he case in hand, there is no such warranty produced by the appellant. The re are concurrent findings of fact recorded by all the Courts below . Another argument raised is that the appellant cannot be said to be a vendor. No case for interference is made out. 5. In response to the arguments raised by learned counsel for the respondents, the learned counsel for the appellant r eferred to the Constitution Bench judgment of this Court in Mangaldas Raghavji Ruparel and another v. State of Maharashtra State 1 to submit that though the word “Vendor” has not been defined in the Act, however, it has been defined to mean a person who has sold the article of food, which is alleged to be adulterated. 6. Heard learned counsel for the parties and perused the relevant referred record. 7. To appreciate the arguments raised by the learned counsel for the parties, reference to provisions of Sections 14 and 19 of the Act would be relevant. The same reads as under:- “14. Manufacturers, distributors and dealers to give warranty .—No manufacturer or distributor of, or dealer in, 1 AIR 1966 Supreme Court 128 129 any article of food shall sell such article to any vendor unle ss he also gives a warranty in writing in the prescrib ed form about the nature and quality of such article to the vendor: Provided that a bill, cash memorandum or invoice in respec t of the sale of any article of food given by a manufactur er or distributor of, or dealer in, such article to the vendor t hereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under this section. Explanation.—In this section, in sub-section (2) of Section 19 and in Section 20-A, the expression “distributor ” shall include a commission agent.” “ 19. Defences which may or may not be allowed in prosecutions under this Act .—(1) It shall be no defence in a prosecution for an offence pertaining to the sale o f 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. (2) A 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— (a) that he purchased the article of food— (i) in a case where a licence is prescribed for the sal e thereof, from a duly licensed manufacturer, distributor, or dealer. (ii) in any other case, from any manufacturer, distributor, or dealer, with a written warranty in the prescribe d form; and (b) that the article of food while in his possessio n was properly stored and that he sold it in the same state as he purchased it. (3) Any person by whom a warranty as is referred to in Se ction 14 is alleged to have been given shall be entitled to appear at the hearing and give evidence.” M/s SRI MAHA VIR AGENCY & ANR. v. THE STATE OF WEST BENGAL & ANR. [RAJESH BINDAL, J.] 8. A perusal of Section 14 of the Act shows that there is a bar on the manufacturer or distributor or dealer to sell any article to any vendor unless he has given a warranty in writing about the nature and quality of such article to the vendor. Rule 12A of the Prevent ion of Food Adulteration Rules, 1955 (for short, “the Rules”) prescribes the procedure to give warranty. It reads as under:- “12A. Warranty.- Every manufacturer, distributor, or dealer selling an article of food to a vendor shall give e ither separately or in the bill, cash memo or a label a warrant y in Form VIA.” 9. Proviso to Section 14 thereof provides that a bi ll, cash memorandum or invoice in respect of the sale of any article o f food given by a manufacturer or distributor of, or dealer in, such article to the vendor thereof shall be deemed to be a warranty give n by such manufacturer, distributor or dealer. 10. Form VIA, as referred to in 12A of the Rules provides text of the warranty to be furnished by the manufacturer, distribut or or dealer selling the article of food. The same reads as under:- 131 11. A conjoint reading of Section 14, Rule 12A and Form VIA provides that no manufacturer or distributor or a dealer of any food article shall sell such article to any vendor unless he has given a warranty in writing in the prescribed form regarding nature and qu ality of such articles to the vendor. The procedure to give a warranty has been provided in Rule 12A of the Rules. Proviso to Section 14 provides that even a bill, cash memo or invoice in respect of sale of any article giv en by the manufacturer or distributor or dealer shall be deemed to be a w arranty given by such manufacturer, distributor or dealer. Form VIA pr ovides the text of the warranty to be given. 12. Exhibit C/Annexure P-1, i.e. Invoice No. 1377 dated 12.08.1999 vide which the appellant had purchased the ‘Pan Masala’ from M/s Kothari Pouches Ltd., is on record. It contains a certification “1. We hereby certify that the goods mentioned in this invoice are warranted to be of nature and quality which theses purport to be.” A perusal of the aforesaid certification given by the manufacturer of the ‘Pan Masala’ shows that it was in terms of the requirement of law. 13. Section 19(2) of the Act provides for the defences which are available to a vendor from prosecution under the Act. Sub-clause (ii) of Section 19(2)(a) of the Act provides that a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterate d or misbranded article of food if he proves that he purchased the article of food from any manufacturer, distributor or dealer with a writ ten warranty in prescribed form. Accordingly, the appellant was having a valid defence in terms of Section 19(2) of the Act as the packed item sold by him namely ‘Pan Parag’ was having a written warr anty in prescribed form from the manufacturer. 14. The term ‘Vendor’ as such has not been defined either in the Act or in the Rules. In Mangaldas Raghavji Ruparel’s case(supra), the word ‘Vendor’ is defined to mean a person who has sold the article of food, which is alleged to be adulterated. The Bench stated:- “The word “V endor” though not defined in the Act, would obviously mean the person who had sold the article of food which is alleged to be adulterated.” 15. In the case in hand, it is the appellant who sold the article of food after purchasing the same from the manufacturer th rough the invoices which contained the warranty as prescribed under the Act and M/s SRI MAHA VIR AGENCY & ANR. v. THE STATE OF WEST BENGAL & ANR. [RAJESH BINDAL, J.] the Rules. Hence, he had the protection available under Section 19(2)(a) of the Act. 16. Though, Section 20A of the Act provides for impleadment of manufacturer, distributor, or dealer in a pending complaint, ho wever, nothing was pointed out at the time of hearing that any such action was taken. 17. In view of the aforesaid reasons, the appeal is a llowed. Impugned judgment and final order of the High Court is set aside. Bail bonds of the appellant stand discharged. Nidhi Jain Appeal allowed. (Assisted by : Mayank Batra and Tamana, LCRAs)