A credit bill given by a manufacturer, distributor, or dealer to a vendor is deemed to be a warranty given under S.14 of the Prevention of Food Adulteration Act, 1954, and the vendor is entitled to protection under S.19(2) of the Act.

JUDGEMENT

P. K. Mohanti. J. :- The appeal arises out of a judgement of the learned Chief Judicial Magistrate. Ganjam acquitting the respondent of an offence under S.16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954.

2. Appellant is the Food Inspector of the Berhampur Municipality. On 13-1-76 he visited the shop of the respondent for inspection of food articles exposed for sale for human consumption. After observing the formalities he purchased 1500 grams of Vanaspati as sample from a closed and sealed tin and paid Rs. 12.72 paise towards its price. He divided the sample into three equal parts and placed them in three clean and dry bottles and sealed and labelled them. One bottle containing the sample was sent to the Public Analyst and the other two bottles were handed over to the local Health authority as required by law. The Public Analyst of the Government of Orissa opined that the sample in question was adulterated. After obtaining necessary sanction under S.20 of the Act, the appellant filed prosecution report against the respondent.

3. The respondent pleaded not guilty to the charge and contended that on 11-11-76 he had purchased a sealed tin of Vanaspati of Kalpana brand from M/s. Santosh Trading and Co. and stored the same in his shop and when the appellant demanded to purchase he sold 1500 grams from out of the said tin. He examined himself as a witness and proved a credit bill dated 11-11-76 (Ext. A) granted by M/s. Santosh Trading and Co. evidencing the sale.

4. The trial court held that the respondent had purchased the Vanaspati from M/s. Santosh Trading and Co. under the credit bill - Ext. A - and sold it in the same state as he purchased. Accordingly it held that the respondent was protected under S.19(2)(a)(ii) of the Act and acquitted him of the charge.

5. According to S.19(2) of the Act, 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 had purchased the article of food from any manufacturer, distributor Or dealer with a written warranty in the prescribed form and that the article of food while in his possession was properly stored and that he had sold it in the same state as he purchased it.

6. Mr. R.C. Misra, the learned counsel appearing for the appellant submitted that under R.12-A of the Prevention of Food Adulteration Rules every manufacturer, distributor or dealer selling an article of food to a vendor should give either separately or in the bill, cash memo, or label, a warranty in Form VI-A and since the credit bill in this case does not contain the warranty in Form VI-A the respondent was not entitled to protection under S.19(2) of the Act.

Mr. Bohidar, the learned counsel for the respondent on the other hand contended that under the proviso to S.14 of the Act the credit bill - Ext. A - is, by legal fiction, deemed to be a written warranty in Form VI-A and as such the respondent is entitled to the benefit of S.19(2).

7. Section 14 of the Act provides as follows :

"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."

The proviso was inserted by Amendment Act 34 of 1976 which came into force on 1-4-76.

8. According to the proviso, a bill or a cash memo, or invoice in respect of the sale of any article of food given by a manufacturer, distributor or a dealer