BABORALLY SARDAR Vs. CORPORATION OF CALCUTTA

JUDGEMENT

(1.) THE following Judgments of the court were delivered by (For himself and P. Satyanarayana Raju, J.);

(2.) THIS is an appeal by certificate from a judg- ment of the High court of Calcutta setting aside the acquittal of M/s. Baburally Sardar of Steward Hogg Market, Calcutta, appellant no. 1 and of Abdul Razzak, a partner of that firm, appellant no. 2, in respect of an offence under s. 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 read with S. 7(1) of that act. The facts which are not in dispute are briefly these : On 1/06/1960 a Food Inspector of the Corporation of Calcutta visited the shop of the appellants. At that time Abdul Razzak was in charge. He took samples of Comela Brand condensed milk from the shop, one of which was sent to the Public Analyst. Upon an analysis made by the Public Analyst the milk fat content of the condensed milk was found to be 3.4% which did not conform to the prescribed standard in respect of condensed milk. A complaint was thereupon lodged against the firm before the Municipal Magistrate and Additional Chief Presidency Magistrate, Calcutta. Apart from the firm five other persons, including Abdul' Razzak were also named as accused persons. One of the accused persons, Mohd. Yasin did not appear but it was represented to the learned Magistrate that the person was not mentally fit. Thereupon the counsel for the Corporation gave him up. The other accused persons pleaded not guilty and were eventually acquitted by the Magistrate. Against that order an appeal was preferred before the High court under s. 417 of the Code of Criminal Procedure. The High court, however, allowed the appeal only against the appellants but dismissed it against the remaining accused persons.

(3.) BACHAWAT, J. The defence under s. 19(2) of the Prevention of Food Adulteration Act, 1954 cannot succeed, as the appellants failed to prove that they purchased the articles of food with a written warranty in the prescribed form. The label on the tin container gave a description of the article of food, but it did not give a warranty certifying that the food is the same in nature, substance and quality as demanded by the vendor. In the absence of such a warranty, the appellants have failed to establish the defence under s. 19 (2) read with R. 12 (a) and Form VI-A. Had there been such a written warranty on the label, the appellants would have established the defence. I agree that the appeal be dismissed.