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TMI Blog2011 (8) TMI 1318X X X X Extracts X X X X X X X X Extracts X X X X ..... said shop, there were pressed tins reflecting Swati brand of M/s. Shri Umiya Oil Mill, Bhavnagar Road, Amreli, which were stocked for sale. It is further stated in the complaint that a panch - Shri Bhojraj Asudomal Aswani was called and in his presence, sample for analysis from the pressed tins of double filtered groundnut oil of Swati brand was obtained in accordance with the rules. Thereafter, necessary notice in Form No. VI by way of Registered A.D post was sent to the accused No. 8 -manufacturing firm (the applicant No. 3 herein). As per the provisions of Section 11 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the Act"), one bottle of the sample was sent to the Public Analyst, Rajkot, for analysis and the remaining two bottles were sent to the Local Health Authority, Mehsana. By a report dated 1st March, 1993 issued by the Public Analyst, Rajkot, the sample was reported to be adulterated. After submitting necessary papers, sanction under Section 20 of the Act was sought for. Accordingly, the complaint came to be lodged on 24 April, 1993 against, in all, eight persons including the applicants herein who were arraigned as accused No. 6 to 8. At t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bill in question. The Food Inspector had not collected any evidence to establish that the said bill had, in fact, been issued by the applicants herein and that the article of which sample had been taken was the article sold by the Company under the bill. It was submitted that without establishing the fact that the article of which sample had been obtained had, in fact, been sold by the applicants to the vendor by virtue of the said bill, there would be no question of resorting to the presumption under the proviso to Section 14 of the Act. According to the learned Advocate it is only when it is established that the article of which sample had been taken was actually sold by the Company under the bill in question would the proviso to Section 14 of the Act be attracted whereby a deeming fiction would be created fastening liability on the manufacturer. It is only in such a situation that as per the deeming fiction, the burden would shift on the manufacturer who would then have to discharge the said burden. It was submitted that in the facts of the present case without considering the contents of the bill and without establishing that the bill in question had actually been issued by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... document in Court may amount to admission of its contents but not their truth. Reliance was also placed upon the decision of the Supreme Court in the case of Keshav Dutt v. State Of Haryana, (2010) 9 SCC 286. 5. Next, it was submitted that when the vendor takes the defence of warranty, he has to prove that this was the bill issued to him and that he had sold the goods in the same condition. It was submitted that in the facts of the present case, the vendor has not led any evidence to prove that the bill in question had, in fact, been issued by the applicants and that he had sold the goods in the same condition. The learned Advocate for the applicants urged that a person dealing in spurious products could also issue spurious bills. Merely by referring to the contents of a bill, it would not be proper to fasten the liability under Section 14 of the Act on the manufacturer. Before fastening the liability under Section 14 of the Act, the prosecution is required to prove the contents of the bill and to establish that the said bill had, in fact, been issued by the manufacturer in relation to the articles of which samples had been obtained. It has to be shown that it is the bill given b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erate himself, then it is for him to prove that he purchased the article of food with a written warranty in terms of rule 12-A. In the facts of the said case, neither the accused dealer nor anyone on his behalf entered the witness box to prove warranty or bill and as such the bill was not proved by leading evidence; after seeing the bill the learned Advocate for the accused dealer was not able to establish the identity of the article mentioned in the bill and the article of food which was taken as sample. The Court held that the accused dealer had not proved warranty. 8. Reliance was also placed upon a decision of the Bombay High Court in the case of S.D Nagdeve, Food Inspector, Amravati… v. Sudhakar Raghunath Burange…., 1999 Criminal Law Journal 2452, wherein the Court in the context of defence under Section 19(2) of the Act held thus:- "The burden to prove this defence is extremely heavy and it is the obligation of the accused to discharge it. The reasons are not far to seek. It is so easy to produce a bill and to suggest that the article of which sample is taken out is out of the article covered by the bill. If defence is held to be proved in this manner, it wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n from one of the sealed tins out of 28 such tins available with the vendor, in the presence of the pancha. A copy of the bill was produced by the vendor before the Food Inspector at that time. The bill contained the licence number, sales tax number etc. of the manufacturer. Even the lorry receipt number and truck number in which the food articles were transported were mentioned therein. It was also stated that the articles mention therein were delivered in terms of weight, quantity and quality of the articles mentioned therein and are in consonance with the facts narrated in the bill. This bill was produced at Exhibit 102 and these facts were proved by the Food Inspector who was examined at Exhibit-38. Hence, in addition to the bill, the label, seal on the tin, etc. proved that the applicants were the manufacturers of the said articles. It was further submitted that it is very clear from the expert opinion that the sample of the groundnut oil was adulterated and that there are concurrent findings of both the Courts below for convicting and sentencing the applicants herein. It was urged that the Food Inspector has no animus or hostility towards the applicants and was discharging pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f without any warranty in Form No. VI-A is sufficient as warranty. Therefore, the same shall prevail over the provisions contained in rule 12A and there is no need of giving either separately or in the bill, cash-memo or a label, warranty in Form No. VIA. It was urged that when there is any conflict or inconsistency between two statutes the prior law would yield to the later law. According to the learned Additional Public Prosecutor, the proviso to Section 14 creates a fiction that a bill, cash-memo or invoice given by a distributor or dealer to the vendor shall be deemed to be a warranty. The proviso does not make reference to Form No. VI-A of Appendix - A to the Rules. It was contended that the Prevention of Food Adulteration Rules are in the nature of subordinate legislation which have been made by the Central Government in exercise of powers conferred by Section 23 of the Act. A rule can never override the provisions of the Act under which it has been made and in the event of a conflict it is the Act which will prevail and not the Rules. It was further submitted that the rules have to be consistent with the provisions of the Act and if a rule goes beyond what the Act contemplat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Additional Public Prosecutor, the vendor by producing the bill immediately to the Food Inspector has duly discharged the burden to the extent necessary under the above provisions. Reliance was placed upon the decision of the Supreme Court in the case of P. Unnikrishnan v. Food Inspector, Palghat Municipality, Palghat, Kerala State., Palghat, 1995 Supp (3) SCC 186 : AIR 1995 SC 1983. It was, however, pointed out that the proviso to Section 14 of the Act has not been considered by the Apex Court in the said decision. 15. Next it was submitted that Section 19(2)(a) and Section 19(2)(b) of the Act operate in different situations. A proper reading of Section 19(2)(a) makes it clear that the vendor shall not be deemed to have committed an offence pertaining to sale of any adulterated or misbranded article of food if he proves that he purchased the article of food in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer. That in the instant case the vendors purchased the article of food from duly licensed manufacturers. Therefore, the present case falls under Section 19(2)(a)(i) and not Section 19(2)(a)(ii) of the Act and henc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) has not been proved in accordance with the provisions of Section 67 of the Act, the learned Additional Public Prosecutor drew the attention of the Court to sub-Section (3) of Section 19 of the Act to submit that under the said provision, even in case of alleged warranty, the burden lies on the manufacturer to then lead evidence in his defence and establish that the goods in question had not been purchased from the said manufacturer and that the bill had not been issued by the said manufacturer. Therefore, as provided under Section 19(3) of the Act there was ample opportunity for the present applicants to appear at the hearing and give evidence in their defence. However, they failed to give such evidence when all the details are mentioned in the bill. It was submitted that the applicants are the manufacturers of the food article and were having in their possession all evidence relating to the same and were the best persons who could bring out the truth, but they failed and neglected to do the same and withheld the correct facts from the Court. Therefore, an adverse inference can be drawn against them. Hence, the contention about Section 67 of the Act is not tenable in law. 18. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple purchased by him is a representative sample or not of the entire stock in possession of the person. A person who stores or sells such sample is liable to be punished under Section 16(1)(a)(i) of the Act." 20. It was submitted that in the instant case the evidence of the Food Inspector, the panchnama, the bill and other documents clearly proved that the articles of adulterated food were manufactured by the present applicants. Therefore, even if there is any technical deficiency, taking into consideration the object of the Act and the larger interest of the public health the applicants are not entitled to get the benefit of the same. It was, accordingly, urged that this is not a fit case for exercise of powers of revision under Section 397 of the Code and that the application deserves to be rejected. 21. In the backdrop of the aforesaid facts and contentions, the following points arise for determination:- 1. Whether the accused No. 1 to 5 have proved warranty as required under Section 19(2) of the Act? 2. Whether the prosecution has proved the bill at Exhibit 102 as required under the provisions of the Evidence Act? 3. Whether the proviso to Section 14 of the Act is attra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossession was properly stored and that he sold it in the same state as he purchased it. In the facts of the present case it is an admitted position that the applicants herein are licensed manufacturers, in the circumstances, the vendor for the purpose of availing the defence under sub-Section (1) of Section 19 of the Act was required to prove that he had purchased the article of food from a duly licensed manufacturer with a warranty in the prescribed form and that the article of food while in his possession was properly stored and that he sold the same in the same state as he purchased it. Examining the facts of the present case in the background of the aforesaid statutory requirement, the vendor has taken up the defence under sub-Section (1) of Section 19 of the Act by producing before the complainant the bill (Exhibit -102). It is on the basis of the said bill that the Courts below have been satisfied that the provisions of sub-Section (2) of Section 19 of the Act have been duly satisfied. The record of the case indicates that on behalf of the accused No. 1 to 6, (the accused No. 6 being the vendor firm and accused No. 1 to 5 being the partners) no evidence has been led to prove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e bill (Exhibit 102), there is mention of only groundnut oil and that the words double filtered groundnut oil are not written in the bill. He has also admitted that the bill (Exhibit 102) was not prepared in his presence and that he is not in a position to say as to whose handwriting and whose signature is there on the bill. He has further admitted that there is no warranty printed on the bill (Exhibit 102). The only other oral evidence is of the panch witness who has not supported the prosecution case and has been declared to be hostile. 25. In the background of the aforesaid evidence, it may be pertinent to examine as to whether the provisions of Section 19(2) of the Act have been complied with. As noted hereinabove, for the purpose of availing the defence under sub-Section (2) of Section 19 of the Act the vendor is required to prove that he has purchased the article of food from a duly licensed manufacturer with a written warranty in the prescribed; form. As noted earlier the only evidence on record is the bill (Exhibit 102) and the testimony of the complainant. On behalf of the vendor no evidence has been led to prove that the food article in question had been purchased from a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased the goods from a licensed manufacturer, distributor or dealer, adulterated or misbranded articles would be marketed by manufacturers, distributors, dealers as well as purchasers from them with impunity. That is why a written warranty is enjoined in both the cases in Section 19(2)(a)(i) and (ii). Section 19(2)(a) of the Act will provide a defence where a vendor purchases article of food from a licensed manufacturer, distributor or dealer with a written warranty in the prescribed form. Again, 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 from any manufacturer, distributor or dealer with a written warranty in the prescribed form. These salutary provisions are designed for the health of the nation. Therefore, a warranty is enjoined. No laxity should be permitted." 28. In the light of the aforesaid facts, it is apparent that the requirements of sub-Section (2) of Section 19 of the Act have not been satisfied by the vendor. In the circumstances, the accused No. 1 to 5 have failed to prove the warranty as required under Section 19 of the Act. 29. Adverting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r written, by comparison of the signature on the document with the: admitted or proved signature of the person who is purported to have signed or written the document, by other circumstantial evidence. Moreover, there must be specific evidence that the signature purporting to be that of executant is in the handwriting of the executant; unless that is proved, the execution thereof cannot be held to be proved. Section 67 makes proof of execution of a document something different from the mere proof of the matter. In the absence of proof of signatures or handwriting on the document, mere production of the document would not be sufficient to infer that the said document has been executed by the parties. In the circumstances, mere production of the bill in question by the complainant-Food Inspector, without proving the handwriting and the signature thereof or without leading any other evidence and without making any attempt to prove the contents thereof by proving the signature or author thereof, it was not permissible to admit the contents thereof in evidence. In the light of the aforesaid discussion it is apparent that all that is proved by the prosecution is that the Bill (Exhibit 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urer 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." 31. It has been contended on behalf of the prosecution that in view of the provisions of Section 14 of the Act a bill, cash memorandum or invoice in respect of 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 a warranty given by such manufacturer, distributor or dealer under the said Section, hence there is no necessity for compliance of the provisions of rule 12-A for the purpose of invoking the proviso to Section 14 of the Act. As is apparent on a plain reading of Section 14 of the Act, the same imposes an obligation on a manufacturer, or a distributor or a dealer not to sell any article of food 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. The proviso thereto, however, introduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of sale of such article to any vendor. In the present case when the fact that the manufacturer has given such a bill itself has not been proved, the deeming fiction under the proviso to Section 14 of the Act would not be attracted because for the purpose of the deeming fiction coming into operation, the condition precedent is that a bill, cash memorandum or invoice in respect of the sale of such article of food should have been given by the manufacturer or distributor of or dealer in such article. In the circumstances, it cannot be deemed that the bill in question was a warranty issued by the applicants-manufacturers and as such the proviso to Section 14 of the Act could not have been invoked. 32. In the light of the findings recorded hereinabove, it is not necessary to enter into the merits of the other issues raised by the learned Advocates for the respective parties. 33. A perusal of the impugned judgments and orders passed by the Courts below indicates that the sole basis for convicting the applicants herein for the offence in question is that the applicants have issued the bill (Exhibit 102) to the vendor and have proceeded on the footing that the contents thereo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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