C. Sanjeeva Row Nayudu, C.J.
1. This is an appeal against an acquittal of the respondent Mukul Chandra Deb Roy of Messrs. Chunilal Hulaschand of Silchar on a charge under the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act'),
2. The offence alleged against the respondent is that he Sold sealed condensed milk, which did not conform to the standard which condensed milk should satisfy. The case of the prosecution is that the respondent was selling sealed tins of condensed milk known as 'Queen of the World'. The sample of these tins was purchased by, the Food Inspector the complainant appellant, who sent the same for analysis to the Public Analyst. The report of the Public Analyst showed that on analysis the condensed milk contained milk fat 0.53 per cent and total milk solids 38.01 per cent. As the milk fat contained is recognised to be of the standard of 9 per cent, public analyst opined that the sample sent to him was not full cream condensed milk as declared on the label of the tin and that it was misbranded. On this report proceedings were taken against the respondent under Section 7 read with Section 16 of the Act.
3. The Court below held that the respondent did not know the contents, that the genuineness of the label was not challenged by the prosecution and that the respondent had produced a leash memo dalivered to him by the traders in respect of the article in question, which cash memo according to the learned Magistrate satisfied the requirements of Section 19(2) of the Act. On these grounds the Court below acquitted the respondent.
4. At the outset, Mr. Lahiri, the learned Counsel for the respondent, took the objection, that the special leave granted by a Bench of this Court under Section 417(4), Criminal Procedure Code, was beyond time, that that Division Bench had no jurisdiction to condone the delay in filing the petition and, therefore, the leave itself must be deemed to be barred by time and consequently the appeal should not and cannot be heard. He placed reliance on. the case of Krishnasami Panikondar v. Ramaswami Chettiar ILR 41 Mad 412 : AIR 1917 PC 179. That was a case dealing with the admission of an appeal after the period of limitation without notice to the respondent. Their Lordships of the Privy Council in this case held that when an order admitting an appeal has-been made in the absence of the respondent, and without notice to him, to preclude him from questioning its propriety would amount to a denial of justice. But that was not a case either under the Criminal Procedure Code or in regard to the grant of a special leave. It may be noted that under Section 417(4), Criminal Procedure Code, there is no provision for issuing a notice or hearing the respondent before granting leave, the grant or refusal of the leave being purely a matter of discretion of the Court receiving the leave application. That apart, a Division Bench of this Court, which received the special leave, had condoned the few days' delay in presenting the same. This order of condonation is questioned before us as devoid of jurisdiction.
It is true that there were earlier decisions of this Court, wherein it was held that as the rule of limitation was specific under Section 417(4), Criminal Procedure Code and directly limited the period within which the leave application could be filed, it is not open to the Court to extend the period of limitation. It is well known that it is open to the Courts of law to make orders which they consider are correct and the fact that the orders are found to be wrong does not affect the orders, unless the orders are set Aside on appeal. In the instant case, the order of the Bench of this Court had not been questioned on appeal before the Supreme Court. That being so, it is not open to us to re-examine the validity of the order of the Bench. We, therefore, must accept the position that the delay had been condoned, the leave application had been granted properly and that the appeal is before us as a proper appeal. We cannot, therefore, uphold the preliminary objection taken by Mr. Lahiri.
5. The next point to be considered is whether the acquittal is justified. This is a case of the sale of a sealed item of food, to wit, tins of what purports to be full cream condensed milk. It is quite possible that the respondent may not have known the nature of the contents of the condensed milk tins. In this connection it is convenient to quote the relevant portion of Section 19 of the Act, which funs as follows:
19. Defences which may or may not be allowed in prosecutions under this Act:
(1) 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.
(2) A vendor shall not be deemed to have committed an offence if he proves,-
(i) that the article of food was purchased by him as the same in nature, substance and quality as that demanded by the purchaser and with a written warranty in the prescribed form, if any, to the effect that it was of such nature, substance and quality;
(ii) that he had no reason to believe at the time when he sold it that the food was not of such nature, substance and quality; and
(iii) that he sold it in the same state as he purchased it:
Provided that such a defence shall be open to the vendor only if he has submitted to the food inspector or the local authority a copy of the warranty with a written notice stating that he intends to rely on it and specifying the name and address of the person from whom he received it and has also sent a like notice of his intention to that person....
6. The form of warranty is prescribed in Form VI-A under Rule 12-A of the rules framed under the Act. This form of warranty contains the name of the person to whom it is issued, the particulars of the date of sale, the nature and quality of the articles sold, the quantity thereof and the price, together with the date and place where the warranty is issued. It is not disputed that a warranty in form has not been produced. But what Mr. Lahiri contends is that the respondent produced the bill for the purchase of those items, which gives sufficient indication of the information that would have been supplied in a warranty form. Such a bill, in our opinion, cannot take the place of warranty, which guarantees contents of the items sold by the producer or the supplier, so that the person who purchases the same and in his turn sells it, is protected. An element of bona, fides is also indicated if the respondent obtains a warranty from the trader and law assumes that such a warranty should be given, as sufficient precaution to ensure that the contents of the tins supplied answer the description on the tins. in the instant case, as no warranty has been supplied by the respondent, he is not, in our, opinion, entitled to the protection under Section 19(2) of the Act.
7. Observing this difficulty Mr. Lahiri contended that the offence is a very trivial one and a highly technical one and though some violation of the provisions of the Act may be inferred, it may not amount to a serious offence as no mens rea is shown to be present. All these matters were apparently considered by the Legislature when they enacted Section 19 of the Act, whereby they adequately made provision for safeguarding the interest of an innocent salesman who sells certain items supplied to him by the trader, provided he takes the minimum precaution. As unfortunately the respondent had not taken the precaution, he becomes liable,, however technical the offence may be.
8. A direct case on the point is Baborally Sardar v. Corporation of Calcutta : 1966CriLJ1208 .
9. We accordingly allow the appeal and convict the respondent Mukul Chandra Deb Roy under Section 7 read with Section 16 of the Act and in the special circumstances of the case sentence him to one month's simple imprisonment and a fine of Rs. 100 (one hundred only), in default, simple imprisonment for a further term of fifteen days. He should be arrested for serving out his sentence.