Dismissed

Chandalmal Sumermal Surana v. the State of Mah and Anr.

Bombay HC24 Jun 2013WP/1189/2010

Case brief

AI extract

What is this about?

In criminal writ petition under Article 226 Constitution and section 482 CrPC, the High Court of Bombay rejected petitioner's claim for quashing proceedings under Prevention of Food Adulteration Act. Court held that 'vendor' under section 19(2) cannot include dealer or distributor seeking protection by claiming they purchased from a manufacturer.

What did the court decide?

Petition for quashing proceedings was dismissed. No relief was granted to the petitioner.

Chandalmal Sumermal Surana Vs the State of Mah and Anr. — Quashing and FIR | Bombay HC (2013)

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Cri. W. P. No. 1189/10

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IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO. 1189 OF 2010

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Chandalmal s/o. Sumermal Surana, Age 60 years, Occu. Business, R/o. Aurangabad Pro. of M/s. Sumermal Surana Traders, Mahavir Chowk, Aurangabad, Dist. Aurangabad.

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....Petitioner.

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Versus

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The State of Maharashtra

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S.N. Sayad, Age : about 50 years, Occu. Service as Food Inspector, C/o. Office of Joint Commissioner, Food and Drugs, Nath Market, Aurangabad.

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....Respondents.

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Mr. D.S. Bharuka, Advocate for petitioner. Mr. G.R. Ingole, A.P.P. for State.

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CORAM : T. V. NALAWADE, J. DATED : 24th June, 2013.

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ORDER :

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The present proceeding is filed under Article 227 of Constitution of India and section 482 of Criminal Procedure Code. The relief of quashing and setting aside the proceeding of Regular Criminal Case No. 1186 of 1997 (New number Summons Case No. 290 of 2009) is claimed and the relief of setting aside the order of issue process is also claimed. The case is pending in the Court of

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Chief Judicial Magistrate, Aurangabad. The proceeding is filed by respondent No. 2 - Food Inspector for contravention of provisions of sections 7 (i) r/w. section 2 (ia) (a) which is punishable under section 16 (1) (a) (ii) and under section 7 (i) r/w. section 2 (ia) (m) punishable under section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act' for short).

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The accused No. 1 of the aforesaid case is the person from whom sample of edible oil cotton-seed was collected by the complainant, Food Inspector. He is partner of accused No. 4, firm, which runs S.T. Canteen, Central Bus Stand, Aurangabad. From this place, sample came to be collected. Petitioner, accused No. 5, is said to be supplier of the oil. Accused No. 25 is manufacturing firm of the aforesaid oil and accused Nos. 6 to 24 are the partners of the said firm.

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It is the case of petitioner that he himself had purchased tin of aforesaid oil from the manufacturer and he had sold the tin of oil to accused No. 1 in the same condition. According to petitioner, he is entitled to the benefit of section 19 (2) of the Act and he needs to be treated as the 'vendor' for the purpose of section 19 (2) of the Act.

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It was submitted for the petitioner that the term 'vendor' used in section 19 of the Act is not defined in the Act, but the meaning of this word given in Oxford Dictionary and Legal Dictionary shows that 'vendor' means 'seller'. It was submitted for petitioner that he had sold the tin containing oil to the hotel and as the tin was purchased from manufacturer, accused No. 25, the provision of section 19 (2) needs to be used in favour of the petitioner also.

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The learned counsel for petitioner placed reliance on the case reported as 2012 (2) FAC 272 GUJRAT HIGH COURT [The State of Gujarat Vs. Shri. Bimalkumar Jayantilal Dave (Vendor) & Ors.]. The facts of this case show that the Trial Court had acquitted the distributor and also the dealer through whom food article Manikchand Gutkha was sold by the manufacturer to the shop keeper. The sample was collected by the Food Inspector from the shop keeper. It was held that the protection of section 19 (2) was available to distributor and dealer also. Due to the provision of the Act and the Rules, this Court has no hesitation to observe with due respect that the aforesaid proposition is not acceptable.

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It is true that the term 'vendor' is not defined in the Act. To find out the person, to whom the legislature wanted to give

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benefit of the provision of section 19 (2) of the Act, the scheme of the entire Act needs to be seen. The object behind the legislation also needs to be kept in mind. It can be said that the provision of section 19 (2) of the Act is there to book real culprit as the 'vendor' is required to supply the information about the person from whom he had collected the adulterated food article. It also needs to be kept in mind that the Court cannot give relief which would be in conflict of statutory provision and so it needs to be ascertained as to whether the person like the petitioner who can be dealer or distributor can be given benefit of provision of section 19 (2) of the Act.

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The definition of term 'sale' given in section 2 (xiii) is as under :-

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"(xiii) "sale" with its grammatical variations and cognate expressions, means the sale of any article of food, whether for cash, or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article;"

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This definition is different from the definition of 'sale' given in

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Sales of Goods Act. The aforesaid provision, definition shows that 'sale' includes the sale of the articles even for the analysis and 'sale' includes even exposure of the food article for sale or an attempt of sale. Interpretation needs to be done in such a way that it would serve the purpose of the Act, would prevent adulteration. For this reason, the meaning given to terms and words in Oxford Dictionary and Legal Dictionary cannot be straightway used for the purpose of the Act.

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The provision of section 7 of the Act shows that no person for himself or any person on his behalf shall manufacture or sell or store or distribute adulterated food article. This section shows that both the principal and agent can be held liable for contravention of the provision and proof of mens-rea is not necessary for proving such contravention. Thus, if the manufacturer was at fault and due to him there is adulteration in food article, the seller, distributor and dealer can be held responsible under this section. Separate terms like "sale", "store" and "distribute" are used in this section. This section shows that the distributor is also liable for the act of manufacturer.

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The provision of section 10 (1) shows that Food Inspector has the power to collect the sample of food articles from the person selling it, from person who is in course of delivering it

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or the person who is conveying it. Section 10 (2) of the Act shows that Food Inspector can collect the sample of food article from the place where it is manufactured or stored for sale etc. Thus, different categories of persons are shown in section 10 (1) and 10 (2) of the Act and the person who is selling food article is placed in different category. For distributor, separate category is created and that can be seen from the other provisions also.

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Section 11 of the Act shows that when Food Inspector takes sample from any person, he shall give notice in writing to person from whom he is taking the sample to show his intention that he is sending the sample for analysis. Under section 11 (1) (a) such notice is required to be given to the person whose name, address etc. have been disclosed under section 14-A. Section 14-A of the Act gives power to Food Inspector to require the person from whom food article, a sample is collected to disclose the name, address and other particulars of the person from whom the food article was purchased. Section 14-A comes after section 14 and so, the terms and words used in section 14 need to be given due importance. For the purpose of section 11, section 14-A needs to read with section 11. These two provisions show that in fit cases the Food Inspector is expected to give notice under section 11 of his intention to send sample for analysis not only to the person from whom he has collected the sample, but also to the

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person from whom the 'vendor' had purchased the said articles. The persons described under section 14-A may be manufacturer, distributor or dealer or any other person.

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Section 14 of the Act runs as under :-

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" 14. Manufacturers, distributors and

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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 :

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Provided that 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 be a warranty given by such manufacturer, distributor or dealer under this section.

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Explanation .- In this section, in subsection (2) of section 19 and in section 20-A, the expression "distributor" shall include a commission agent."

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This section shows that different categories like manufacturer, distributor (also commission agent), dealer and vendor are shown in this section. The section provides that first three categories of persons are bound to give warranty in writing to vendor in respect

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of food article in prescribed form. Thus, 'vendor' falls under different category and he does not fall under category of manufacturer, distributor or dealer. This section shows that manufacturer is not required to give such warranty to distributor or dealer.

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Section 16 provides for penalties in respect of aforesaid contraventions. The relevant portions for the present purpose from section 16 are section 16 (1)(a), 16 (1)(b) and 16 (1) (g). They are as under :-

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" 16. Penalties .- (1) Subject to the provisions of sub-section (1-A), if any person-

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(a) whether by himself or by any other person on his behalf, imports into India or manufactures for sales, or stores, sells or distributes any article of food-

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(i) which is adulterated within the meaning of sub-clause (m) of clause (ia) of section 2 or misbranded within the meaning of clause (ix) of that section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority;

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(ii) other than an article of food referred to in sub-clause (i), in contravention of any of the provisions of this Act or of any rule made thereunder; or

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(b) whether by himself or by any other person on his behalf, imports into India or manufactures for sales, or stores, sells or distributes any adulterant which is not injurious to health; or

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(c)..........

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(g) whether by himself or by any other person on his behalf, gives to the vendor a false warranty in writing in respect of any article of food sold by him,

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he shall, in addition to the penalty to which he may be liable under the provisions of section 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not be less than one thousand rupees :"

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This section shows that for contravention of section 7, there is penalty provided against the distributor separately. Similar provision is there in section 16 (1-A) to make the distributor liable when there is contravention of section 2 (i-e).

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The provision of which the petitioner wants to take benefit viz. section 19 is as under :-

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" 19. Defence which may or may not be allowed in prosecutions under this Act. - (1)

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It shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or misbranded article of 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.

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(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--

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(a) that he purchased the article of food

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(i) in a case where a license is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer,

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(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.

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(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."

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Section 19 (1) shows that ignorance of vendor of adulteration is no excuse. Section 19 (2) shows that vendor can take benefit of this provision only after proving of conditions mentioned in

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section 19 (2). The conditions are as follows :-

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(a) (i) He had purchased the food articles in case where licence is prescribed for the sale thereof from duly licenced manufacturer, distributor or dealer, or

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(ii) He had purchased the food article in any other case from any manufacturer, distributor or dealer with a written warranty in the prescribed form and

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(b) The article in his possession was properly stored and he sold it in the same state as he purchased it.

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Section 19 (3) of the Act shows that person who has given warranty under section 14 is different from vendor. If the purpose behind section 19 (2) which is collection of information against real culprits, the persons mentioned in section 7 of the Act, is kept in mind, it can be said that after getting the information, the Food Inspector can proceed not only against the vendor, but also against persons like manufacturer, dealer, distributor and person like the petitioner. In such a case, there would be joint trial and during the joint trial, the vendor will have to prove his defence. When there is such trial and in view of section 19 (2), if the vendor is acquitted but the adulteration is proved, the manufacturer, distributor, dealer and a person like petitioner can

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be convicted.

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Due to wording of section 19 (1) (2), dealer, distributor or the person like petitioner cannot fall under section 19 (2) of the Act. So, vendor for the purpose of section 19 (2), is the person, who had purchased the food articles from manufacturer, distributor or dealer and he is the person, who has record to show that there is a warranty as mentioned in section 14 and section 19 (2) of the Act in his favour. In view of the wording of these sections, this Court holds that person like petitioner, distributor, dealer is not allowed to take benefit of section 19 (2) of the Act. Due to the provisions of the Act like section 7, 16 already discussed as the accused had worked for manufacturer, he becomes liable for prosecution along with vendor.

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The other relevant provision is section 20 (1), which is as under :-

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" 20. Cognizance and trial of offences. - (1)

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No prosecution for an offence under this Act, not being an offence under section 14 or section 14-A shall be instituted except by, or with the written consent of, the Central Government or the State Government or a person authorised in this behalf, by general or

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special order by the Central Government or the State Government."

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This section again shows that vendor under section 19 (2) of the Act is different from distributor, dealer mentioned in section 14 and 14-A of the Act. Rule 12-A runs as under :-

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" 12-A. 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 label, a warranty in Form VIA"

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Form VI-A from the Appendix -A shows the same thing.

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Thus, the scheme of the Act shows that legislature had no intention to give benefit of the provision of section 19 (2) to the distributor, dealer or person like petitioner. If there was such intention, the legislature would have made such intention clear in aforesaid provisions. This Court has already observed that section 19 (2) promises protection to the vendor for collecting the information against the real culprits. When such purpose is over, there would not be any question of giving benefit to more persons, who form chain for manufacturer for doing the business or distribution for manufacturer When the defence under section 19 (2) is required to be proved by proving the conditions, the

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proceeding cannot be quashed.

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