R.N. Aggarwal, J.
(1) On 9th October 1973, Food Inspector J. S. Chadha visited the Grocery shop of the accused at premises No. 150, Ram Nagar, Delhi. The accused was found selling Haldi powder. The haldi powder was in tin and it weighed about 4 kilograms. The Food Inspector disclosed his identity to the accused and purchased 450 grams of haldi powder for the purpose of analysis on payment of Rs. 2.45 p. as its price. One part of the sample was sent to the Public Analyst who found the sample to be adulterated due to the presence of 15% foreign matter of starches and artificial coal-tar-dye. On receipt of the report of the Public Analyst the Municipal Prosecutor filed a complaint under Section 7 read with Section 16 of the Prevention of Food Adulteration Act (hereinafter called the Act) against the accused.
(2) During the trial of the case, on an application of the accused the counter-part of the sample in possession of the Food Inspector was sent to the Director of Central Food Laboratory, Calcutta, for examination and report The Director found the sample to be adulterated due to the presence of 'Metanil yellow, a non-permitted coal-tar- dye.'
(3) The accused in his statement at the trial admitted the taking of the sample of haldi by the Food Inspector, The defense of the accused is that he had purchased haldi in sealed packets from M/s. Golden Mosala Company on 7th October, 1973 and sold it in the same condition to the Food Inspector out of one of the sealed packets. The accused stated that the case against him is false and the Food Inspector has tried to protect the manufactures. In support of his defense the accused examined Sat Narain, Proprietor, Golden Masala Company and also examined himself as a witness.
(4) The trial Magistrate believed the prosecution case and sentenced the accused to rigorous imprisonment for 1' years and a fine of Rs. 5000.00 and in default to undergo rigorous imprisonment for 4 months under section 7 read with section 16 of the Act and to rigorous imprisonment for 6 months and a fine of Rs. 1000.00 and in default to undergo rigorous imprisonment for 2 months for not possessing the license. Both the sentences were ordered to run concurrently.
(5) Against his conviction and sentence the accused went in appeal to the Sessions Judge Shri B. B. Gupta, Additional Sessions Judge who heard the appeal affirmed the convictions and sentences and dismissed the appeal.
(6) Against the order of the Additional Sessions Judge the accused has come in revision to this court.
(7) It is not disputed that a sample of Haldi was taken by the Food Inspector from the shop of the petitioner and it was found to be adultereted. The defense of the accused is that he had purchased 2 kilograms of Haldi in sealed packets from Golden Masala Company on 7th October, 1973 and had sold the Haldi in the same condition and the petitoner in support of his defense had produced cash memo Ex. D.W. 2/A and also examined Sat Narain, proprietor of Golden Masala Company. The Courts below have disbelieved the defense version of the accused, and in my opinion rightly.
(8) J.S Chadha, Food Inspector, gave evidence that the Haldi powder was in a tin container in a looss form and weighed about 4 kilograms and he had purchased 450 grams of Haldi powder out of the tin container. P.W. 3 Shri M.M. Gupta supported the above statement of Shri J.S. Chadha. In cross-examination Public Witness . 3 refuted the suggestion that the sample was taken out of a plastic bag of one kilogram. I have carefully gone through the statements of Public Witness s. 1 and 3 and I find no reason to doubt the veracity of their statements.
(9) The food Inspector piepared in inventory Ex. P.C. at the time of the taking of the sample. The said inventory is thumb marked by the petitioner. No note was made by the petitioner in the inventory either that he had purchased the Haldi powder from Golden Masala Company or that the sample had been taken by the food inspector out of the sealed packet. The report of the Public Analyst was given to the accused on 4th November 1973. The complaint was filed on 19th December 1973 and the accused appeaed in the Court on 2nd January 1974. It was on 10th January 1974 that the accused sent the notice Ex. D.A. to the Food Inspector along with photostat copy of Ex. Public Witness . 2/A. The fact that the accused took no steps for 3 months to inform the Food Inspector about the purchase of the Haldi from M/s. Golden Masala Company is a circumstance that throws doubt on the genuineness of the defense plea.
(10) In cross-examination D.W. 2 Sat Narain admitted that in the counterfoil of D.W. 2/A the name 'Tek Chand Arora Provisional Store' is not written and that the above name in Ex. D.W. 2/A was got written by the accused later on. The witness further stated that his signatures at A to A on Ex. D.W. 2/A were also obtained later on. The witness stated that he sells spices only in sealed packets. An examination of the memo Ex. D.W. 2/A in the light of the statement of D.W. 2 makes the genuineness of Ex. D.W. 2/A doubtful and it appears to have been manufactured subsequently to create a defense.
(11) Section 19 of the Act provides that 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 : -
(A)that he purchased the article of food-
Judgment (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 store and that he sold it in the same slate as he purchased it.
(12) Rule 50 of the rules framed under the Act provides that no person shall manufacture, sell, stock, distribute or exhibit for sale any of the articles mentioned therein except under a license and one of the articles for which license is required is 'spices and condiments'. It is in the statement of D.W. 2 that he does not possess a license for the manufacture or sale of Haldi power. For the above reason also the petitioner would not be protected by section 19(2).
(13) On giving my careful thought to the defense version I am of the view that it has no truth in it.
(14) Mr. D.R. Sethi, learned counsel for the petitioner, contended that the sentence awarded is excessive. I maintain the convictions but modify the order of sentence to the extent that the petitioner is sentenced to rigorous imprisonment for six months and to a fine of Rs. 1500.00 and in default of payment of fine to undergo rigorous imprisonment for 2 months on the charge under section 7 read with section 16 of the Act and on the second charge for not possessing the license to simple imprisonment for one month. Both the sentences small run concurrently. With the above modification the revision is dismissed. The petitioner who is on bail should be taken into custody to undergo the sentence of imprisonment awarded to him.