Judgment

SIKRI, JJ. -

( 1 ) 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 Rule 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 Rule 12a. The High Court on appeal held to the contrary.

( 2 ) THE relevant facts are these. The appellant is a Rice and 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.

( 3 ) THE appellant appeared as a witness and he stated that he purchased Asafetida 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:

"l. T. Alhakesan and Brothers, Asafoetida Merchants, Vellamadom

SRI K. Ranganatha Reddiar Kottarakara Rate: 6. 00

PARTICULARS : C. S. T. Rs. 2.

ONE case of Asafoetida Misky bag 30rs. 180. 00

THE quality is up to 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. "

( 4 ) 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 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. "

"s. 19 (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 proved:-

(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".

THE Prevention of Food Adulteration Rules, 1955.

"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".

( 5 ) 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.

( 6 ) 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