T.P. Mukherji, J.
1. Criminal Appeal No. 571 of 1964 and Criminal Revision Case No. 1009 of 1964 have been heard together. The appeal arises out of the conviction of the proprietor and the seller of a proprietorial firm under Section 16(1)(a)(1)/7 of the Prevention of Food Adulteration Act 1954 and the sentence of a fine of Rs. 500/- each, in default, rigorous imprisonment for 5 months passed therein. The application in revision was filed on behalf nf the firm which was also an accused in the case and which also was convicted under the above section of the Act. No sentence was, however, passed on the petitioner in the case in pursuance of the conviction.
2. On February 13, 1962 a Food Inspector of the Calcutta Corporation visited the shop of the firm Messrs. Mohari Lal Nathmal and seized from inside a bag a sample of zira after observing the necessary formalities. A portion of the sample kept in a separate phial was sent to the chemical examiner and on receipt of the analyst's report that the zira was adulterated, a prosecution was launched against the firm as accused No. 1, against the proprietor as accused No. 2 and against the seller as accused No. 3.
3. The defence was that the bag of zira wherefrom a sample was seized by the Food Inspector formed part of a consignment of 26 bags received by the accused firm from a firm called M/s Chiranjilal Joykumar of Rajas-than along with a letter of warranty. On transit some bags suffered damage and compensation was received from the railway in respect of the shortage discovered. The bag from which the sample was taken is alleged to have been one of those damaged bags. It was also the case for the defence that even at the time of the seizure it was given out to the Food Inspector that the consignment was covered by a warranty, as such the accused claimed protection of Section 19(2) of the P. F. A. Act.
4. The learned Judge found that the zira in question was adulterated. He disbelieved the defence case about the consignment having been covered by a warranty and on his findings he convicted and sentenced the accused in the case as stated above.
5. Mr. Mukherji in support of the rule and the appeal contended that the observations of the learned Magistrate, taking exception tosome witnesses not having been examined on behalf of the defence, are unwarranted and that P. W. 4 who admitted the defence case regard-ing the fact of warranty having been Riven out at the time of seizure should not have been disbelieved on grounds stated in the judgment. He urged that in view of the evidence regarding the warranty that was adduced in the case it should have been held that the accused were protected by Section 19(2) of the P.F.A. Act.
6. Mr. Basu on behalf of the Calcutta Corporation contended that P.W. 4 has been rightly disbelieved particularly in view of the fact that to the Food Inspector in course of his cross-examination it was never suggested that the fact of warranty had been given out at the time of the seizure. Mr. Basu took exception to the warranty Ext. F in the case on the ground that it does not conform to the form prescribed in form VI-A of the Rules framed under the Act and he also contended that the notice of the warranty having been served on the Food Inspector two months after the seizure, the learned Magistrate was quite correct in disbelieving the very existence of the warranty at the time of the seizure.
7. So far as the zira seized is concerned, the defence case appears to have been that 4 bags were received by the accused from the railway in a torn condition and that extraneous materials might very easily have Rot mixed up with the contents thereof and so if on chemical analysis the zira was found to be adulterated they could not be blamed for it and it was also the defence case that this particular bag of zira which had been in a torn condition was not meant for sale and was kept in a corner of the room awaiting the decision of the railways on the claim for the shortage that had been preferred. On the back of the delivery receipt Ext. B there is an endorsement that out of the consignment of 203 bags. 4 bags were slack. Ext. D is the certificate of shortage granted to the accused in the case and it mentioned that out of the consignment of 203 bags, 4 bags were slack and that considering the total weight of the consignment 13 kg. of the contents was short per slack bag. These papers of the railway on the basis whereof the accused obtained their claim for compensation did not support the oral evidence in the case that any of the bags were found in a torn condition. If therefore a sample of zira taken from any of these bags divulge adulteration of the contents I do not see how liability can be avoided considering the fact that the accused had stored the consignment for sale.
8. Considering the materials on record, I accept the learned Magistrate's findings that the sample of zira that was seized was adulterated.
9. Coming now to the question of warranty, we get from P. W. 4, one of the search witnesses in the case that at the time of the seizure it had been Riven out that the goods concerned were covered by a warranty and also it had been Riven out bv accused No. 3 and that his master, that is accused No. 2, onlyacted as a commission aRent. P. W. 2, a Sub-Inspector of Police who accompanied the Food Inspector admitted in his evidence that there were some objections raised at the time of the seizure by accused No. 3, Nirmal. Along with this oral evidence, we have a warranty Ext. F given by Chiranjilal Joykumar in respect of 203 bags of zira. This warranty is dated December 24, 1961.
10. Mr. Basu contended that this warranty Ext. F is not a legal warranty as contemplated by Section 19(2) P. F. A. Act. That seclion says that a vendor shall not be deem ed to have committed an offence if he proves certain things including that the goods concerned are covered by a warranty, that police of the warranty had been given to the Food Inspector and also to the trader from whom the goods had been received. Here notice of the warranty having been given to the Food Inspector two months after the seizure the same shall, according to Mr. Basu, not be a proper notice according to law.
11. The P. F. A. Act does not say that the notice of warranty will have to be served on the Food Inspector or that the warranty will have to be shown to him, at the time of the seizure. All that Section 19(2) of the Act provides is that he vendor shall not be deemed to have committed any offence even if samples seized from him are found to be adulterated if the Court finds that certain conditions have been fulfilled, The question is whether those conditions have been fulfilled in this case. The fact that notice of warranty was given to the Food Inspector after the prosecution was launched is not in my opinion a reason why the warranty itself should be disbelieved out right. That fact may raise suspicion in the mind as to the genuineness of the warranty, which fact would be a question of fact to be decided on evidence adduced.
12. Form VI-A prescribes the form of warranty. Ext. F in the present case does not conform to that form, but this document gives a warranty in respect of the article mentioned therein in a language much stronger than what is provided for in form VI-A of the Rules under the P. F. A. Act. Considering this aspect of the case I am not prepared to hold that the warranty Ext. F cannot be accepted as a legal warranty simply because it does not conform to the prescribed form.
13. The next question raised in this con-nection is whether the warranty should be thrown out in view of the fact that it is dated 3 days after the date of despatch of the goods from Rajasthan. The railway receipt Ext. A(1) shows that the consignment was despatched on December 21, 1961. The warranty is dated December 24, 1961, but it mentions 203 bags of zira covered by the Railway Receipt Ext. A(1) and it also mentions the number of the railway receipt Ext. A (1). There is no difficulty, therefore, in connecting the warranty with the railway receipt and the goods sent thereunder.
14. Mr Basu contended that under Section 19(2)(i) the goods must be purchased alongwith a written warranty if protection therefor is sought in this section. Here is a case where we find on evidence that the accused persons are the commission agents of the consignors of the goods. The goods are despatched on the 21st December and on the 24th of the same month if the warranty can be connected with the goods concerned that would be in itself an act of purchase, a purchase along with that warranty. In the present case it was not an act of purchase but a case of receipt of goods from the principal by an agent for sale on commission. I find no difficulty in accepting Ext. F as a perfectly good, and legal warranty as required by Section 19(2) of the P. F. A. Act.
15. Notice of the warranty was served on the Food Inspector after this prosecution had been launched Ext. A is the notice dated April 11, 1962. A corresponding notice was sent to the principal in Rajasthan on the 11th May, 1962. Ext. G is that notice. There was indeed delay in serving notice of the warranty on the Food Inspector, but the question is whether the fact of warranty should be disbelieved because of this delay. When we consider the warranty along with the evidence of P. Ws. 3 and 4 referred to above. I find no difficulty in finding that the warranty was in existence on the date of the seizure of the sample in this case. Something was attempted to be made oul of the fact that accused No. 3 who was present at the time of the seizure did not mention about the warranty at the back of the outer foil of the notice that was served upon him When we find that the Food Inspector raiding the shop in the company of a Sub-Inspector of Police, we find this employee facing the Food Inspector and the Sub-Inspector of Police and we are not surprised that this employee did not have the courage to make a note about the warranty at the back of the outer foil of the notice that was served upon him. The question as I have stated is whether the fact of existence of the warranty should be disbelieved because of his having failed to make mention of the warranty as above. In this connection if the consider the evidence of P. Ws 3 and 4, the defence case that the warranty was mentioned at the time of the seizure becomes probable and I see no reason why in the face of that probability this case should be not accepted.
16. As I have already pointed out notice of this warranty was served on the Food Inspector and this notice was before the Court at the trial. Service of a similar notice on the trader in Rajasthan was also proved and that evidence also was before the Court. That Chiranjilal Joykumar had notice is also evident from the 3 letters Exts. H (2) series. In this connection mention may be made of Ext. J (1) which is a letter from Rajasthan to the accused firm dated August 24. 1961, stating that a warranty in respect of the goods con-cerned was being sent along with the letter.
17. Considering the evidence on record I find that the requirements of Section 19(2) were met in the present case and the learned Magistrate should not have had any difficulty in finding that the accused were entitled to the pro-tection of that section. The principle behind the section is that if the goods suspected to be adulterated is seized from a vendor and the same is found to he covered by warranty any offence committed under the P. F. A. Act may attach not to the person from whom samples are taken, but to the actual trader who may be deemed to have been responsible for the adulteration. On the evidence adduced in the case if the learned Magistrate had found, as he should have done, that the goods are covered by the warranty it was for him to take appropriate action against the trader concerned from whom Ihe goods had been received. The appellants in Appeal No. 571 of 1964 are in my judgment entitled to an acquittal.
18. The accused firm was convicted in the case but no sentence of imprisonment was imposed. An application for revision was filed in the case on behalf of the firm in the belief that no appeal lay against the conviction where no sentence of imprisonment had been imposed. Section 415-A, Cri. P. C., however, provides that in the present case the accused firm had also a right of appeal. That firm as has been stated is a proprietorial firm. There is no provision in the P. F. A, Act which makes a proprietorial firm liable along with the proprietor for any offence committed under the Act. The only provision in this regard is in Section 17 of the Act which is concerned with limited companies and partnerships. Clearly in this case the proprietorial business could not be prosecuted along with its proprietor, accused No 2 in the case and the prosecution of accused No 1 along with accused No. 2 in the circum-stances of this case was clearly against the provisions of the P. F A. Act.
19. The position stands however that although the order of conviction was appealable no appeal against the conviction has been filed. Under section 439, Clause (5) an application in revision in the circumstances is not maintainable, but in the facts of the case I am of the view that the Court should invoke its powers under Section 561-A, Cri. P. C. in order to set right a wrong that has been committed and in this view of the matter I treat the application in revision as a petition of appeal. In view of my findings this proprietorial business was not liable to be prosecuted far less to be convicted for the offence alleged.
20. In the result, Criminal Appeal No. 571 of 1964 as well as Criminal Revision Case No. 1009 of 1964 which is treated as a criminal appeal are both allowed. The order of conviction and sentence passed on the appellants is set aside and the accused in the case are acquitted. Fines, if realised, be refunded.
21. The 10 bags of zira seized from the accused in the case be returned to the personfrom whom they were seized.