R.N. Aggarwal, J.
(1) This is an appeal by the Municipal Corporation of Delhi against the judgment dated April 1, 1977 of Mr. P. K. Bahri, Additional Sessions Judge, acquitting the respondents Ram Chand and Mangha Ram of the offence of selling adulterated besan. The respondents were acquitted by the Additional Sessions Judge mainly on the- ground that the sample sent to the public analyst was' less than the quantity required to be sent to the public analyst under the rules and in this conclusion the Additional Sessions Judge relied upon the judgment of the Supreme Court is the case Rajaldas Gurunamal Pamanani v: The State of Maharashtra, : 1975CriLJ254 . The aforesaid judgment was reconsidered by the Supreme Court in State of Kerala etc. v. Alaserry Mohammed etc. etc. 1978(1) F.A.C. 145(2). The Supreme Court reversed. its earlier judgment and held that Rule 22 is directory and not mandatory. We have gone through the record and we find nothing in the report of the public analyst to show that the quantity of the sample sent to the public analyst for. analysis was not sufficient for a correct analysis. thereforee the acquittal of the respondents on the ground mentioned in the judgment of the Additional Sessions Judge is not legal.
(2) Briefly stated the facts of the case are that on 12th July, 1973 the Food Inspector S. D. Sharma, visited Jamna Provision Store doing kiryana business at Jamna Bazar, Kashmere Gate, Delhi and purchased 600 grams of besan on payment of price for purpose of analysis. The Food Inspector divided the sample in three parts and sealed them in three clean and dry bottles. One part of the sample was sent to the public analyst who found the sample to be adulterated due to the presence of 5 per cent foreign matter of kesari dal and insect infestation.
(3) The vendor at the time of the taking of the sample took the plea that he had purchased I bag of besan on 10th July from M/s. Mangha Ram Ram Chand and the sample taken by the Food Inspector was out of the said bag. The vendor produced a bill evidencing purchase.
(4) On 15th December 1973 the Municipal Prosecutor filed a complaint under section? read with section 16 of the Prevention of Food Adulteration Act against M/s Jamna Provision Store, Bhag Mal, proprietor of M)s. Jamna Provision Store, Bal Mukand, salesman,-M/s. Ram Chand Hira Chand (supplier) and Mangha Ram proprietor of M/s. Ram Chand Hira Chand.
(5) On 4-2-1974 the complainant filed an application stating therein that by mistake the name of the supplier firm had been written M/s. Ram Chand Hira Chand instead of Mangha Ram Ram Chand and that Ram Chand was the proprietor of the said firm and that the necessary correction be made in the names of the accused mentioned at Seriall Nos. 4 and 5. Public Witness -4 Mohinder Singh Tyagi in his statement dated 5-3-1974 deposed that according to their record Ram Chand is the proprietor of the Firm Mangha Ram Ram Chand.
(6) On 7th March, 1974 an order was passed discharging Mangha Ram, M(s. Jamna Provision Store and M/s. Ram Chand Hira Chand. Ram Chand was allowed to be imp leaded as accused No. 4 as sole proprietor of M/s. Mangha Ram Ram Chand. We may notice here that the firms were discharged on the ground that the offence said to be committed was compulsorily punishable with imprisonment and since the firms could not be sentenced to any term of imprisonment, the firms could not be prosecuted. This was in view of the decision of this Court in M/s. Rameshwar Dass Chhotey Lal and others v. Union of India and others. . The complainant examined' a few witnesses. On 16th July 1975 the magistrate passed an order for impleadment of M/s. Mangha Ram Ram Chand and its partners Ram Chand and Mangha Ram. The magistrate in the order observed that it has come in the evidence that Ram Chand is not the sole proprietor of M/s. Mangha Ram Ram Chand and that in fact, the said firm is a partnership firm and Mangha Ram and Ram Chand are its partners. The order, purports to have been passed under Section 20-A of the Prevention of Food Adulteration Act. Thereafter the trial proceeded. On the conclusion of the prosecution evidence all the accused were examined under Section 313 Criminal Procedure Code . Bhag Mal stated that he had got the Jamna Provision Store registered in 1971 and that he closed his business and the business under the name Jamna Provision Store at Shop No. 1.875 was the business of bids son Bal Mukand. Bhag Maldenied that Bal Mukand was his salesman. Bhag Mal showed his ignorance regarding the taking of the sample.
(7) Bal Mukand accused stated that he was the owner of the shop Jamna Provision Store and that Bhag Mal had nothing to do with it. Bal Mukand admitted that the Food Inspector had come to his shop on 12th July 1973 and taken the sample of besan. Bal Mukand stated that the sample was taken out of a stitched bag, and that he had purchased the said bag from M/s. Mangha Ram Ram Chand and that he produced the bill marked A regarding the purchase of the bag before the Food Inspector.
(8) Mangha Ram accused stated that he is a partner in the firm M[s. Mangha Ram Ram Chand but since he had got old, he was not working at the shop. Mangha Ram showed his ignorance regarding the sale of one bag of besan to Jamna provision Store on 10th July 1973. He further stated that he was not responsible to the firm for its business.
(9) Ram Chand accused admitted that he was one of the partners of Mangha Ram Ram' Chand. He also showed ignorance regarding the sale of any bag of besan to Jamna Provision Store on 10th July 1973. Ram Chand further stated that he only sold besan in stitched bags bearing the mark 'Phool Chhap' manufactured by India Flour Mill. Ram Chand also made a statement on behalf of the firm Mangha Ram Ram Chand.
(10) The trial magistrate on an appreciation of the evidence produced before him acquitted Bhag Mal and Bal Mukand. The firm Mangha Ram Ram Chand and its partners Ram Chand and Mangha Ram were found guilty of the offence charged with and Ram Chand was sentenced to rigorous imprisonment for 1-1/2 years and to a fine of Rs. 2,000 and in default to undergo rigorous imprisonment for one year. Mangha Ram was sentenced to rigorous imprisonment for 6 months and a fine of Rs. 2,000.00 and in default to undergo rigorous imprisonment and the firm M/s. Mangha Ram Ram Chand sentenced to a fine of Rs. 2,000.00 .
(11) Against the aforesaid judgment all the accused went in appeal to the Sessions Judge. The appeal, as earlier stated was heard by Mr. P. K. Bahri, Additional Sessions Judge and he acquitted Ram Chand and Mangha Ram appellants on the ground that the sample sent was less than the quantity prescribed by the rules. The appeal was filed on behalf of all the accused including the firm but we find that there is no specific order acquitting the firm or upholding its conviction. The Municipal Corporation of Delhi has filed an appeal and this is against Mangha Ram, Ram Chand and the firm Mangha Ram Ram Chand.
(12) We must say at the outset that we are not very happy the way during the trial the fate of the accused fluctuated. The complainant also is not free from blame in this respect. The record shows that at the time of the taking of the sample the vendor Bal Mukand had told the Food Inspector that he had purchased a stitched bag of besan from M/s. Mangha Ram Ram Chand G. T. Road, vide bill No. 9187 dated 10th July 1973. He also produced the bill before the Food Inspector (see Ex. PB). M.C.D. V5. Ram Chand And Others The bill (bw-UB) bears the name Mangha Ram Ram Chand, Dal and Rice Merchants J Block Shop No. 8-6 Shardha Nand Market, .G. B. Road. The complaint (Ex. Public Witness -2^A) dated 12-12-1973 was filed against Mis. Raia Chand Hira Chand supplier and Mangha Ram .proprietor of the firm M/s. Ram Chand Hira Chand. We are unable to understand how the complaint was filed against Ram Chand Hira Chand as the supplier in face of the bill Ex. DW-1/B as well as the statement of the vendor contained in Ex. Pb that ha had purchased the bag of besan from Mangha Ram. Ram Chand. We find that in the preliminary report (Ex.PF) the name of the supplier given was Mangha Ram Ram Chand and the name of the proprietor Ram Chand son of Hira Nand. The above clearly shows that there has been - hanky panky in impleading M/s. Ram Chand Hira Chand as I the supplier in the complaint.
(13) On 5th March, 1974 Public Witness -4 Mohinder Singh Tyagi Labour Inspector gave evidence that according to the if record I the Firm M/s.Mangha Ram Ram Chand is doing business at shop No. 8 Shardha Nand Market, Delhi and Ram Chand is its sole proprietor.
(14) On the above statement the magistrate on 7th of March, 1974 discharged Mangha Ram and the firm M/s. Ram Chand Hira Chand. We have earlier stated the reason why the firms were discharged. Ram Chand was imp leaded as an accused as the sole proprietor of M/s. Mangha Ram Ram Chand. The firm M/s. Mangha Ram Ram Chand was not imp leaded. This was obviously because the court thought that the firm could not be prosecuted since the offence is compulsorily punishable with imprisonment.
(15) The record shows that in May, 1975 Bal Mukand made an application alleging that the firm Mangha Ram Ram Chand is a partnership concern and Mangha Ram and Ram Chand are the partners of M/s. Mangha Ram Ram Chand and Public Witness -4 Mohinder Singh Tyagi, Labour Inspector be recalled for giving evidence.
(16) On 16th July 1975 the magistrate passed an order for impleading Ram Chand and Mangha Ram and the firm M/s. Mangha Ram Ram Chand as accused. The above order was passed under Section 20-A.
(17) We may mention here that the firm Mangha Ram Ram Chand was not imp leaded earlier, as an accused for the reason noticed by us above but since in the meantime in case [M.C.D. v. J. B. Bottling Company Pvt. Ltd. 1975(1) FA.C. 321(4)] it was held that a company could be convicted in respect of an offence which is compulsorily punishable with imprisonment, the magistrate decided to implead Mangha Ram Ram Chand also as an accused.
(18) We are unable to understand how after Mangha Ram was discharged earlier on 7th March, 1974 he was again imp leaded as an accused on 16th July 1975. It is true that on the first occasion Mangha Ram was made an accused as the proprietor of M/s. Ram Chand Hira Chand and under the order dated 16th July 1975 he was imp leaded as an accused in his capacity of a partner of the firm Mangha Ram Ram Chand, but the fact remains that Mangha Ram was discharged earlier and that order had become final.
(19) Before discussing the merits of the order of the magistrate a few provisions of the Prevention of Food Adulteration Act need to be noticed. Section 14 as it was in force at the time of the faking of the sample provided that no manufacturer or 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. Sub-section (2) of section 19 provided that a vendor shall not be deemed to have committed an offence pertaining- to the sale of any adulterated or misbranded article of food it he proves :
(A)that he purchased the article of food-
(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 mnufcturer, 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.
SECTION 14 was amended by Act 34 of 1976 and the amen- ded section reads as follows :
'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.'
ExplanationN.-INthis section, in sub-section (2) of Section 19 and in Section 20-A, the expression 'distributor' shall include a 'commission agent.'
There was no amendment in Section 19,
(20) Returning to the facts of the case Bal Mukand vendor had before the Food Inspector stated that he had purchased the bag of besan, out of which the sample was taken from M/s. Mangha Ram Ram Chand on 10th July 1973 and he produced the bill regarding the said purchase before the Food Inspector. At the trial also he stated that he had purchased the bag of besan from Mangha Ram Ram Chand and he had. given the sample out of the said bag to the Food Inspector. It is clear that the vendor had pleaded the defense available to him under Section 19. The defense under Section 19 was available to the vendor if he proved that Mangha Ram Ram Chand was a licensed manufacturer, distributor or dealer and (2) that he had purchased the besan from M/s. Mangha Ram Ram Chand with a written warranty in the prescribed form. We find it was never the case of the vendor that he had purchased the bag of besan from Mangha Ram Ram Chand with a written warranty in the prescribed form. thereforee, the defense taken by the vendor under Section 19 would have failed on this short ground. The provision in Section 14 which was inserted by Act 34 of 1976 brought about a drastic change inasmuch as it provided that in case a manufacture or distributor or a dealer gives a bill in respect of the sale of any article of food to the vendor it shall be deemed to be a warranty by such manufacturer, distributor or dealer. The amended section 14 if applied to the case in hand would bring the supplier within the clutches of section 19 but if the law as it stood on 12th July 1973 is applied the vendor does not get the protection of section 19. Section 14 as it stood in 1973 only provided that a manufacturer, distributor or dealer must give a warranty in writing in the prescribed form regarding any article of food sold by him to any vendor. If a manufacturer, distributor or dealer did not comply with the requirements of section 14, he could be prosecuted for violation of section 14 but the vendor could plead successfully the defense open to him under section 19 by proving that he had purchased the article of food from the manufacturer, distributor or dealer with a written warranty in the prescribed form.
(21) The learned magistrate acquitted the vendor and found the supplier guilty by holding that the amendment in section 14 made in 1976 has retrospective effect. We do not agree with this view of the learned trial magistrate. We fail to see how the amendment made in section 14 in 1976 could be retrospectively applied to this case. There is nothing in the Amending Act to show that any retrospective effect was intended to be given to the said amendment. In Krushna Chandra v. Commr. of Endowments and others, : AIR1976Ori52 a division beach of that court held :
'It is a fundamental rule of construction that no statute shall be construed to have a retrospective operation unless such a construction appears very clear in the terms of the Act or arises by necessary and distinct implication. An offshoot of this rule that if the enactment is expressed in the language which is fairly capable of either interpretation, it ought to be construed as prospective only and that there is a presumption against a retrospective operation if, when so operated, it would prejudicially affect the vested rights or the legality of past transactions.'
(22) The Supreme Court in Jose Da Costs and another v. Bascora Sadashiva Sinai Norcornin and others, : AIR1975SC1843 held the provisions which touch a right in existence at the passing of statute are not to be applied retrospectively in the absence of express enactment or necessary intendment.
(23) We also find that there is no evidence showing that the firm M/s. Mangha Ram Ram Chand possessed a license regarding the sale of besan. The only evidence on the record is that on 25th July 1973 Mangha Ram had paid a sum of Rs. 841- towards the license fee for the years 1967-74. There is nothing to connect Ex. Public Witness -2/D with the firm Mangha Ram Ram Chand. In any case the payment of the license fee for the years 1972-73 and 1973-74 on 25th July 1973 would show that on 12th July 1973 there was no valid license with M/s. Mangha Ram Ram Chand.
(24) We may mention that during the pendency of the appeal Mangha Ram has died and the appeal against him stands bated.
(25) For the reasons stated we decline to interfere with the order of acquittal, though for reasons different to the one given by the Additional Sessions Judge. We make it clear that the effect of our order would be that the firm Mangha Ram Ram Chand also stands acquitted.