NARAYANDAS KASURDAS AND SONS Vs. FOOD INSPECTOR KOZHIKODE

JUDGEMENT

(1.) THIS revision petition is filed by the accused who were convicted by the District Magistrate, Kozhikode, for an offence under S. 16 (1) (g) of the Prevention of Food Adulteration Act Act 37 of 1954 (hereinafter referred to as the Act ). Accused No. 1 is the firm Messrs. Narayandas Kesurdas & Sons and the second accused is its partner and power of attorney holder.

(2.) PW. 2, Subramania Iyer, is a trader within the kozhikode Municipality. On 4 71960 PW. 1 one of the Food Inspectors of the municipality visited the shop of PW. 2 and purchased 12 packets of compounded asafoetida from out of the stock labelled as 'super fine Misky-NKG-Compounded asafoetida-Narayandas Kesurdas and Sons, Madras, Bombay and Kumbakonam'. The packets purchased were taken out from an unopened bag kept for sale. This stock had been purchased by PW. 2 from the accused under invoice Ex. P8 dated 10 3 60. After the purchase the Food Inspector notified his intention to have the article analysed. It was duly sampled. One part was handed over to PW. 2, the other part was retained by him and the third part was sent to the Public analyst, Trivandrum for analysis. The standard of quality for compounded asafoetida is prescribed in clause A 04 to Appendix B to the rules framed under the Act. Clause A. 04 reads: "x X X X Compounded asafoetida or bandhani hing is composed of one or more varieties of asafoetida Irani and or Pathan hing) gum arabic and wheat and/ or rice flour. It shall not contain sand, gravel or other foreign mineral matter, colophony resin, galbonum resin, ammoniac cum resin or any other foreign resin. The ash content shall not exceed 10 per cent of its weight and the alcoholic extract (with 90 per cent alcohol) shall not be less than 10 per cent. Use of coaltar dyes or mineral pigment is prohibited. " In his report Ex-P3 the Public Analyst certified that the sample analysed is adulterated as it contained only 53% of compounded asafoetida and as it was mixed with coaltar dye. If the quality or purity falls below the standard it shall be deemed to be adulterated within the meaning of s. 2 of the Act. S. 7 of the Act prohibits the manufacture, sale, storage or distribution of such food and S. 16 provides the penalty for the contravention of the provisions of S. 7. The Food Inspector, therefore, filed a complaint against PW. 2. On receipt of the summons PW. 2 informed the municipality by notice Ext. P4 that he has a written warranty from his suppliers the accused in this case and that he intends to rely on that warranty as his defence and that the warranty covered the stock from which the said sample was taken. On the basis of this intimation the accused was indicated for an offence punishable under S. 16 (1) (g) of the Act. S. 16 (1) (g) provides that if any person whether by himself or by any person on his behalf gives to the purchaser a false warranty in writing in respect of any article of food sold by him, commits an offence.

(3.) THE term warranty has not been defined in the Act. What would amount to a warranty within the meaning of the section has been elaborately considered by one of us in Criminal Appeal No. 133 of 1961 (not reported ). THE wording in S. 19 (2) (1) shows that the warranty must have been obtained by the vendor at the time of his purchase of the article in question. THE words used are, "the article of food was purchased by him. . . with a written warranty in the prescribed form. . . " R. 12a says that every trader selling an article of food to a vendor shall, if the vendor so requires, deliver to the vendor a warranty in form VIA, and form No. VIA contemplates a warranty being contemporaneously given in respect of each invoice. In the English Act S. 25 of the Food and Drugs Act 1875 there is no mention of the warranty being in any particular prescribed form. But even there the English decisions say that the undertaking to give a warranty must have been one of the terms of the contract of purchase and it is only then that the warranty obtained subsequently can be availed of as a defence. In this case admittedly no warranty was given at the time of the sale. THE attempt of pw. 2 was to make out that even at the time when the contract was entered into there was an agreement to give a warranty and the warranty Ex-P11 was afterwards given in pursuance of that stipulation in the contract.