CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 141 of 1967.
Appeal from the judgment and order dated July 21, 1967 of the Kerala High Court in Criminal Appeal No. 109 of 1966.
A.S.R. Chari, A. S. Nambiar and K.R. Nambiar, for the appellant. V.K. Krishna Menon and’ M.R.K. Pillar, for the respondent. The Judgment of the Court was delivered by
Sikri, J. In this appeal by certificate the only point that arises is whether the cash memo, Ex. D1, issued by the seller to the appellant contains a warranty within r. 12A of the rules framed under the Prevention of Food Adulteration Act, 1954 (Act 37 of 1954), hereinafter referred to as the Act. The Magistrate, who tried the complaint, held that Ex. D1 was a proper warranty and it fell within the proviso to r. 12A. The High Court on appeal held to the contrary.
The relevant facts are these. The appellant is a Rice & General Merchant and holds a wholesaler’s licence. It was alleged in the complaint that the appellant had stored and exposed for sale and sold compounded asafoetida which was found’ to have been adulterated by wheat starch and tapioca starch and that non-permitted orange coaltar dye was present. The report of the Public Analyst to Government, Trivandrum, was relied on. in this connection.
The appellant appeared as a witness and he stated that he purchased asafoetida from L.T. Alakesan and Brothers, received it in enclosed packets in bags and sold it in bags. He received invoice which reads as follows:
"Lt. T. Alhakesan & Brothers,
Asafoetida Merchants, Veliamadom
Sri K. Ranganatha Reddier, Kottarakara
Rate: 6.00 Particulars: C.S.T. Rs. 2. One case of Asafoetida
Misky bag 30 Rs. 180/ The quality is up to the mark. C.S.T. Rs. 3.60
Rs. 183.60 Rupees one hundred and eighty three and N.P. sixty only. One case (1d) (Id) 1/4/64 (Sd.) 147542 18/5/64" He further stated that "it is written on the packet as "Extra Superior" in English and as "Compounded misky full of quality and flavour" in Tamil."
The relevant statutory provisions are:
The Prevention of Food Adulteration Act, 1954
"S. 14. Manufacturers, distributors and
dealers to give warranty.--
No manufacturer, distributor or dealer of any
article 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."
"S. 19(2). A vendor shah not be deemed
to have committed an offence pertaining to
the sale of any adulterated or misbranded
article of food if he proved---
(a) that he purchased the article of food--
(i) in a case where a license 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."
The Prevention of Food Adulteration Rules,
"Rule 12-A. Warranty--Every trader
selling an article of food to a vendor shall,
if the vendor so requires, deliver to the
vendor a warranty in Form VI-A:
Provided that no warranty in such form
shall be necessary if the label on the article
of food or the cash memo delivered by the
trader to the vendor in respect of that
article contains a warranty certifying that
the food contained in the package or container
or mentioned in the cash memo is the same in
nature, substance and quality as demanded by
the vendor.
Explanation.--The term "trader’ shall
mean an importer, manufacturer, wholesale
dealer or an authorised agent of such
importer, manufacturer or wholesale dealer."
We are not concerned with the question
whether rule 12A is contrary to the provisions
of the Act. We take it that it is valid and
if the appellant’s case falls within the
proviso he is entitled ’to acquittal.
It was contended before us on behalf of the respondent that the warranty must state expressly that the food mentioned in the cash memo was the same in nature, substance and quality as demanded by the vendor, and if these words did not exist in the cash memo, the proviso would not apply. We are unable to accede to this contention. It may be that if the warranty is not contained in a label or cash memo the warranty must be in Form VI-A, which uses these words:
"We hereby certify that the food/foods mentioned in this invoice is/are warranted to be the same in nature, substance and quality as that demanded by the vendor." But we do not decide this as it is not necessary to do so. In our view when the proviso expressly says that no warranty in such form shall be necessary in certain eventualities it would be rewriting the rule to hold that nevertheless the same things must exist in the label or the cash memo. It seems to us that if the words in the warranty can reasonably be interpreted to have the s_nine effect as certifying "the nature, substance and quality" of an article of food, the warranty will fall within the proviso. The Act is of wide application and millions of small traders have to comply with the provisions of the Act and the Rules. The learned counsel for the State says that if they are not able to comply with the provisions they should stop carrying on their trade. But if the object underlying the Act can be achieved, without disorganising the trade, by giving a reasonable interpretation to Rule 12A, it is our duty to do so.
A number of English cases were referred to us, but we do not find it necessary to refer to them as they interpret the Sale of Food & Drugs Act, 1875, and the later Food & Drugs Act, 1955. The language of the relevant sections dealing with defences is different and warranties employing different words have been interpreted. But they do at least show this that trade can be carried on and the object of the Act is not defeated even if traders use ordinary language of the trade or popular language in warranties.
Coming now to the language used in the cash memo it seems to us that the words "quality is up to the mark" mean that the quality of the article is up to the standard required by the Act and the vendee. Quality in this context would include nature and substance because the name of the article is given in the cash memo. It must be remembered that it is not a document drafted by a solicitor; it is a document using the language of a tradesman. Any tradesman, when he is assured that the quality of the article is up to the mark will readily conclude that he is being assured that the article is not adulterated. The offence, if any, has been committed by the seller and not the appellant.
There was some argument before as to the difference in the meaning of the words "nature, substance and quality". It was pointed out that s. 14 only uses two words "nature and quality" and not substance. But it is not necessary to express our views on this point. Reference was made to the case of Baburally v. Corporation of Calcutta(1). This Court held that the words on the label and the so called cash memo in that case did not contain the requisite warranty. But we are unable to see how that case assists either the appellant or the State.
In the result the appeal is allowed, judgment of the High Court set aside and that of the Magistrate restored. The appellant’s bail bond shall be treated as cancelled. R.K.P.S. Appeal allowed. (1) [1966] 2 S.C.R. 815.