CHETANKUMAR RAMESHCHANDRA SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Revision Application is preferred by the petitioner challenging two decisions, one holding the petitioner guilty for the offence punishable under Section 16(1)(a)(i) r/w. Section 7 of the Prevention of Food Adulteration Act. 1954 (hereinafter referred to as 'the Act') dated 11th March. 1998 and another decision dated 13th October. 2000 given by the learned Additional Sessions Judge, Ahmedabad City, dismissing the Criminal Appeal of the petitioner and confirming the order of conviction dated llth March. 1998 passed by the learned Metropolitan Magistrate. Court No.6. Ahmedabad. in Criminal Case No.94/1989.

(2.) Mr.Pardiwala learned counsel appearing on behalf of Mr. K.B. Anandjiwala for the petitioner has taken me through all the relevant facts including the method adopted by CFL in recording findings as to use of equipment in analysing the sample i.e. use of Microscope, though there is no such provision in the relevant Rules, that may probably lead this Court to any other or different approach. The first legal submission made before this Court by Mr.Pardiwala is that both the lower Courts have failed to consider the plea of the petitioner accused as far as Section 19(2) of the Act is Concerned. Section 19(2) of the Act reads as under:

(3.) It is not a matter of dispute which has been observed in para: 19 of the Judgment and order of the learned trial Court that during the course of recording evidence one bill was produced by the petitioner-accused to show that he had bought the Turmeric Powder from one 'Shree Laxmi Bhandar' having 'Kabutar Brand Agmark Masala Manufacturer' and the complainant Food Inspector had drawn the sample of turmeric powder from that bulk and that sample was sent to public analyst for the purpose of analysis. The production of this document was not objected as record to its admissibility and. therefore, the bill was accepted as a piece of evidence and the same was given exh.50. This document exh.50 was considered by the learned trial Court but it is observed that this bill does not reflect any warranty and in absence of specific warranty, the petitioner accused cannot escape from his individual liability of selling an adulterated article. The defence available to the petitioner-accused under Section 19(2) of the Act would not be available in such contingency. It is argued by Mr. Pardiwala that as far as the contention of the petitioner-accused with regard to Section 19(2) of the Act is concerned the law is well settled. Section 14 of the Act with its proviso clinches the issue. Looking to, the text of the proviso to Section 14, a bill, cash memo or invoice in respect of the sale of any article of food given by manufacturer or distributor or dealer, in such article to the vendor thereof shall be deemed to be a warranty given by the said manufacturer, distributor or dealer under this Section and, therefore, a deeming effect has been given by this proviso and each and every bill should be accepted as a warranty given by the manufacturer distributor or dealer. When the bill has been duly proved in evidence and has been exhibited and marked exh.50 without there being any objection raised by the prosecution, this defence of the petitioner-accused ought to have been accepted. It is true that there is no evidence on record that the turmeric powder purchased from the manufacturer was preserved in the same condition and sold as it was bought from the manufacturer or dealer. This point according to Mr.Pardiwala is also no longer res Integra and it has been answered by this Court (Coram : H.H. Mehta. J) by judgment dated 25th February. 2000. while dealing with the Criminal Appeal No.683/ 91. It has been observed by this Court that to make defence of warranty as provided under Section 90 of the Act as a genuine defence, it becomes abundant duty of the Food Inspector to take further steps immediately including step of raiding the premises of either manufacturer or dealer from whom the food article was purchased by the vendor. Inaction on the part of the Food Inspector in this regard is likely to prejudice the defence of the vendor. It is argued that when it is difficult to hold that, the petitioner-accused neither stored it properly nor sold it in the same condition as he purchased it, then in that eventuality, the accused should be given benefit of doubt. This Court in the case of R.S. PRAJAPATI V/S. STATE OF GUJARAT AND ANR. REPORTED IN 1991 (1) GLR 82, has observed that as per the provisions of Section 14 of the Act, even bill, cashmemo or invoice would be deemed to be a warranty. Where a bill, cash-memo or invoice is given at the time of sale, a separate warranty is unnecessary and the bill, cash-memo or invoice would be deemed to be a warranty. So even if there is no written warranty in the prescribed from, the production of credit bill is sufficient compliance of the law. which gives protection from prosecution to vendor who purchased the article from manufacturer, distributor or dealer under Section 19(2) of the Act. Similar observations are made in the case of AMARCHAND V/S. STATE OF PUNJAB. REPORTED IN 1984(1) FAC 1967. wherby it is held that the Court has power to implead the manufacturer/ dealer or distributor as an accused by exercising powers vested with the Court under Section 20(A) r/w. subsection (3) of Section 319 of the Code of Criminal Procedure. 1973 (2 of 1974). if during the trial the Court is satisfied on evidence adduced before it that such manufacturer, distributor or dealer is also concerned with the offence. But in the present case, the sample has not been drawn or taken from sealed/packed container. The turmeric powder was in a separate tin and it was not in its original packing made either by manufacturer, wholesaler or distributor! so the ratio of this decision or similar decisions cited by Mr.Pardiwala would not help the petitioner-accused.