M/S. Sri Mahavir Agency vs The State Of West Bengal

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 982 OF 2023 (ARISING OUT OF S.L.P.(CRL.) NO.8128/2016)

M/s SRI MAHAVIR AGENCY & ANR. …Appellants

Versus

THE STATE OF WEST BENGAL & ANR. …Respondents

JUDGMENT

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 Adulteration Act, 1954 (for short “the Act”). He was

convicted and sentenced to undergo rigorous imprisonment

for a period of six months by Senior Municipal Magistrate,

Calcutta. In appeal, the conviction and sentence of the

appellant was upheld by the Additional District & Sessions Signature Not Verified

Judge, Fast Track Court, Calcutta vide judgment dated Digitally signed by Indu Marwah Date: 2023.04.17 17:45:47 IST Reason:

26.06.2009 in Criminal Appeal No.106/2007. The order was Page 1 of 11 Criminal Appeal No.982/2023

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 purchased 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 available in prosecutions

under the Act. The Courts below failed to consider the

aforesaid legal argument and upheld the conviction.

Page 2 of 11 Criminal Appeal No.982/2023

3. On the other hand, learned counsel for the

respondents 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

appellant. 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 twice, 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 down 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

Page 3 of 11 Criminal Appeal No.982/2023

allowed to go scot-free only on technical grounds. A warranty

has to be given by the manufacturer or distributor in the

prescribed form. In the case in hand, there is no such warranty

produced by the appellant. There 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 referred to the Constitution Bench judgment of this

Court in Mangaldas Raghavji Ruparel and another v. State of

Maharashtra State1 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.

1 AIR 1966 Supreme Court 128 Page 4 of 11 Criminal Appeal No.982/2023

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, any article of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor:

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.

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 of any adulterated or misbranded article of Page 5 of 11 Criminal Appeal No.982/2023

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 sale 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 prescribed form; and

(b) 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.

(3) Any person by whom a warranty as is referred to in Section 14 is alleged to have been given shall be entitled to appear at the hearing and give evidence.”

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 Page 6 of 11 Criminal Appeal No.982/2023

about the nature and quality of such article to the vendor. Rule

12A of the Prevention 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 either separately or in the bill, cash memo or a label a warranty in Form VIA.”

9. Proviso to Section 14 thereof provides 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.

10. Form VIA, as referred to in 12A of the Rules

provides text of the warranty to be furnished by the

manufacturer, distributor or dealer selling the article of food.

The same reads as under:-

Page 7 of 11 Criminal Appeal No.982/2023

“[FORM VIA (See rule 12 A) FORM OF WARRANTY

Invoice No. ………………. Place…………… Form ……………………… Date…………….

To ………………………….

Date of Sale Nature and quality Batch No. or Code No. Quantity price of Article/Brand Name, if any 1 2 3 4 5

I/ We hereby certify that food/ foods mentioned in this invoice is/are warranted to be of the nature and quality which it/ these purports/purport to be.

………………………… Signature of Manufacturer, Distributor or Dealer Name and Address of Manufacturer/ Packer Licence No. ……………… (in case of packed article). (Wherever applicable.)]”

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 quality 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

Page 8 of 11 Criminal Appeal No.982/2023

given by the manufacturer or distributor or dealer shall be

deemed to be a warranty given by such manufacturer,

distributor or dealer. Form VIA provides 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 adulterated or misbranded article

of food if he proves that he purchased the article of food from

Page 9 of 11 Criminal Appeal No.982/2023

any manufacturer, distributor or dealer with a written 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

warranty 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 “Vendor” 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 through the invoices which contained the

warranty as prescribed under the Act and the Rules. Hence,

he had the protection available under Section 19(2)(a) of the

Act.

Page 10 of 11 Criminal Appeal No.982/2023

16. Though, Section 20A of the Act provides for

impleadment of manufacturer, distributor, or dealer in a

pending complaint, however, 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

allowed. Impugned judgment and final order of the High Court

is set aside. Bail bonds of the appellant stand discharged.

….…………..………J. [Abhay S. Oka]

….……………..……J. [Rajesh Bindal]

New Delhi April 17, 2023 //NR//

Page 11 of 11