N.H. Bhatt, J.
1. This is an appeal by the State of Gujarat challenging the acquittal of the respondent-accused, who was prosecuted in the Criminal case No. 169/75 in the Court of the Metropolitan Magistrate, 6th Court, Ahmedabad for an offence under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act. The learned Magistrate had acquitted the accused only on the ground that the firm of which he was the partner was not (sic) and, therefore, his individual conviction could not stand. The learned Magistrate because of that view of his, did not examine the other aspects of the case. The said complaint had come to be filed in the Court of the said Magistrate by one Mr. R.P. Patel, the Food Inspector attached to the Ahmedabad Municipal Corporation.
2. A few facts require to be stated:
On 9-7-75, the aforesaid Food Inspector had gone to the shop of the accused, where the business in ground-nut-oil was conducted under the name and style of M/s Manilal Joitaram, a partnership firm, of which accused Kantilal Chimanlal Ghiya is the partner. It has been found by the learned Magistrate himself that on that very day, 500 sealed and packed tins were received by the accused's firm from Ganesh Oil Mill, Junagadh. The bill Ex. 10 showed that the said Oil Mill had sent 500 tins of ground-nut-oil and it was specifically stated in the bill that each tin contained 15,900 grams obviously of the ground-nut-oil. There were labels on each of the 500 tins showing that they were manufactured by the Ganesh Oil Mill, Junagadh. The complainant demanded 400 grams of ground nut-oil and in the presence of the Food Inspector and the Parch, one sealed tin was opened out of those SCO sealed tins received on that day by the accused's firm and the quantity demanded was sold. The purchased quantity then was divided into three bottles and the requisite procedure in its entirety is alleged to have been followed. One of the sealed bottles was given to the accused as per the law as it then was. One bottle with the Food Inspector was then got analysed and the report of the Public Analyst Ex. 6 disclosed that there was admixture of castor oil. The bellier test showed 3C less and it was reported that there was 8.0% castor oil mixed in the quantity.
3. On the charge Ex. 8 being framed the accused pleaded not guilty. He stated that he had received 500 tins from Ganesh Oil Mill, Junsgadh in the packed condition. That he was never selling ground nut in retail and he always used to sell in whole-sale packed tins.
4. The learned Magistrate in the course of his judgment held as follows:
(1) It is amply borne out that the accused sold ground-out from a packed tin to the complaint.
(2) There were packed tins ground-nut-oil in the shop of the accused.
(3) There was a seal of Ganesh Oil Mill, Junagadh and there was label also of the above Mill on the tins.
(4) The accused had shown bill Ex. 10 of 500 tins there and then.
(5) The firm had received 500 sealed tins of ground-nut-oil from the Ganesh Oil Mill, Junagadh. on that very day.
(6) A letter demanding warranty from the said Mill was written by the accused's firm. On that very day, namely, 9-7-75 and the carbon copy of the letter is at Ex. 15 and the letter was received by the Mill as per Postal receipt Ex. 16.
5. The sole ground on which the learned Magistrate acquitted the accused, was the firm having been not jointly prosecuted is such as cannot be allowed to stand. The accused before the Court himself was the actual person who had sold the specimen quantity and he was not sought to be vicariously made liable. The sole ground, therefore, on which the learned Magistrate recorded acquittal cannot be allowed to stand.
6. Mr. Shethna, the learned Advocate for the Respondent, however, urged that in the facts and the circumstances of the case, the defence under Section 19(2) of the Act would squarely arise. The said Section 19 (reads as follows:
Section 19(2): A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or rnisbranded article of good if he proves:-(a) that he purchased the article of food:
(i) In a case where a licence is prescribed for the sale thereof, from a duly licenced 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.
7. Rule 12(A) of the rules who requites to be quoted below because the following discussion would have a reference to it. Rule 12-A has undergone metamorphosis. Rule 12-A came to be enacted for the first time in the year 1956. When framed it read as follows:
12-A Warranty-Every trader selling in 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.
Then in the year 1968, the abovementioned proviso came to be deleted and so, Rule 12-A came to read as follows:
12-A Warranty.- Every manufacturer, distributor or degler selling article of fcod to a vendor shall give either separately or in the bill, cash memo or label, a warranty in Form VI-A.
In this connection, Section 14 is also required to be read as it was introduced for the first time in the year 1964 and with effect from 1-3-64. It reads as follows:
14. Manufacturers, distributors and dealers to give warranty-No manufacturer or distributor of or dealer in, 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:
To the above quoted Section 14, a proviso came to be added by the legislature by Section 14 of Central Act, 1976. The said proviso reads as under:
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.
8. The case on hand had come to be made out on 8-7-75. The complaint was filed on 16-8-75. But the charge came to be framed on 8th July 1976. What I emphasis is that on the day the trial commenced the above quoted proviso to Section 14 was there.
9. In the light of the above legal position, it is to be seen whether the accused can be said to have made out the defence under Section 19(2) of the Act. The findings categorically recorded by the learned Magistrate are set out by me above. After the proviso added to Section 14, is it incumbent that the warranty in the prescribed form alone can make defence under Section 19(2) available?
10. In this connection, a judgment of the Supreme Court in the case of K. Ringanaiha Reddiar v. The State of Kerala. A.I.R. 1970 S.C.P. 520 renders considerable assistance. Section 19(2) as it is to day also was on the statute book at the time the offence in that case had taken place. Instead of the proviso to Section 14, the above quoted proviso to Rule 12-A was there on the statute book. The Supreme Court interpreted Section 19(2) of the Act in that light of the proviso to Rule 12A and in that connection laid down ratio as follows:
When the proviso to Rule 12A of Prevention of Food Adulteration Rules expressly says that no warranty in form VIA shall be necessary in certain eventualities it would be rewriting the rule to infer that nevertheless the same things must exist in the label or the cash memo. If the words in the warranty can reasonably be interpreted to have the same effect as certifying the nature substance and quality of an article of food, the warranty will fall within the proviso The Act is of wide application and millions of small traders have to comply with the provisions of the Act and the Rules. If the object underlying the Act can be achieved, without disorganising the trade, by giving a reasonable interpretation to Rule 12A it is Court's duty to do so. The object of the Act is not defected even if traders use ordinary language of the trade or popular language in warranties.
11. In my view, the above quoted observations of the Supreme Court squarely apply to the facts of the present case. Before the Supreme Court the proviso to Rule 12A was under investigation. In the case on hand, the proviso to Section 14 is required to be employed for the purpose of examining the pith and substance of Section 19(2) of the Act. In that case, the rigorous operation of the defence under Section 19(2) of the Act was diluted with reference to the proviso appended to Rule 12A, I see no reason why the proviso to Section 14 enjoins upon the manufacturer to give to the vendor a warranty in the prescribed form. But the proviso dilutes it and it lays down that if the substance of the warranty could be had in the bill etc. it shall be deemed that the warranty in the prescribed form is given. In the case on hand in the right of all attendant circumstances which I have enumerated above, it is crystal clear that the bill in question and the label and the seals on tins all together show that the accused relied upon the implied warranty that what was sold to him by the manufacturer was ground nut oil pure and simple unadulterated with castor oil which in the case on hand is as much as 8%. Therefore, reading the proviso appended to Section 14 conjointly with Section 19(2) of the Act, I hold that in the facts and circumstances of this particular case, the defence under Section 19(2) is well laid.
12. However, one argument that was very strenuously urged by the Public Prosecutor Mr. Patel in this case requires to be dealt with. Mr. Patel urged that the proviso was added to Section 14 on and from 1-4-76 whereas the offence in question had taken place on 8-7-75. Mr. Patel urged that the proviso is not given retrospective operation and the liability of the accused is to be determined on the basis of the law as it then was on 8-7-75 the day of the offence. The argument though pressingly urged before me by Mr. Patel the learned Public Prosecutor, in my view does not hold much water. The Proviso to Section 14 is substantially a procedural provision. It is a guiding principle laid down for the purpose of interpreting the bills etc. Whenever the question arises, for the interpretation of the bill like bill Ex. 10 on the record of this case the proviso will be there to render its assistance. Being procedural in character, this proviso is to be deemed to be retroactive in operation. In this view of mine, I am supported by the Judgment of the Single Judge of the Allahabad High Court in the case of Vishnu Awatar v. State 1978 Cr. L.J. 1664. A point identical in character had arisen before the Allahabad High Court in the course of the appeal. That case in a way was not as favourably situated as the present case is. The proviso came to be applicable only during the appellate stage, while in the case on hand, the proviso was on the statute book before the actual trial commenced after the framing of the charge. The learned Judge of the Allahabad High Court in this connection has observed as follows:
In my opinion, therefore, the proviso mentioned above, which has been added by Act No. 34 of 1976 would certainly be available to the applicant. As 1 have mentioned above, the bill (Ex. ka 1) has been duly proved. Under the proviso it shall be deemed to be a warranty given by the dealer as required under Section 14 of the Prevention of Food Adulteration Act. In this view of the matter in spite of the absence of a written warranty in the prescribed form, the production of the duly proved Bill is a sufficient compliance of the law which grants protection from prosecution to the applicant under Section 19(2) of the Food Adulteration Act. The appellant is, therefore, not guilty of the commission of any offence. This revision is accordingly allowed.
In my view, therefore, the accused's defence deserves to be accepted, and on this count his acquittal confirmed. Mr. Patel, the learned Public Prosecutor, however, urged that as the learned Magistrate had not examined this defence, I should rernaud the matter to him with a direction that he should consider this defence in the light of the observations made by me above. Had there been any scope for any other interpretation in the facts and the circumstances of the case, 1 would have certainly adopted that course. But when the bill Ex.10 is there duly proved, when all the attendant circumstances are there, and when there are categorical findings recorded by the learned Magistrate himself, as listed by me above, it would be undue strain on the accused to continue him to be under a hanging sword. He has been already under an ordeal since July 1975 and it would be too harsh to continue this harassment any further. Mr. Patel, however, requested this demand primarily for the purpose of roping in the Genesh Oil Mill, Junagadh by recourse to Section 20A of the Act. As the material stands before me to day I have no hesitation in holding that the Ganesh Oil Mill, Junagadh would be responsible for being considered whether it can be dealt with for this adulteration. I am not to be understood to have expressed any definite opinion about the guilt, but it does appear that there is a prima-facie case for launching the prosecution against that Company and its partners. It will be in the fitness of things if the Government takes up the matter on hand under Section 20 of the Act or any other concerned authority thinks to comply with the requirement of law regarding sanction and other procedural aspects and then launch the prosecution, so that a serious case, if proved, does not go unpunished. With this observation, I dismiss the State's appeal. One copy of this judgment to be sent to the Municipal Commissioner, Ahrredabad and the second to the State of Gujarat, Gandhinagar.