The Commissioner (Now ... vs Satyanarain And Co. Partnership ... on 19 September, 1975

    The Commissioner (Now Administrator) Municipal Corporation vs Satyanarain And
Co. Partnership Firm And Ors. on 19/9/1975

JUDGMENT

   A.P. Sen, J.

   1. This appeal under Section 417(3) of the Code of Criminal Procedure, filed
by the Administrator (now Commissioner), Municipal Corporation, Jabalpur, with
leave of the Court, is directed against an order of acquittal of the Magistrate
First Class, Jabalpur, dated 31st March, 1967, acquitting the respondents of an
offence punishable under Section 16 of the Prevention of Food Adulteration Act,
1954, for alleged contravention of Section 7 of the Act.

   2. The prosecution case, in brief, is as follows. The respondents - M/s
Satyanarain & Co., Jabalpur and its partners, are a firm of commission agents.
They are engaged in the business of selling mustard oil and coconut oil, which
they get from different manufacturers. We are here concerned with samples of
mustard oil taken on 25-3-1964, by M. B. Shrivastava Food Inspector (PW 1) in
form IV, vide Ex. P-9, from 5 sealed tins containing mustard oil, manufactured
by M/s Uma Shanker Oil Mills, Allahabad. The samples were duly forwarded by the
Food Inspector to the Public Analyst who by his report dated 31-3-1964 in form
III, Ex. P-11, found that out of the five samples taken, four were adulterated.

   3. The order of acquittal recorded by the learned Magistrate rests on two
grounds, namely.

     (i) the report of the Public Analyst, Ex-P-11, was inadmissible in
evidence, in view of the decision of a Division Bench of this Court in State of
Madhya Pradesh v. Abbasbhai 1967 MPLJ 872 : 1967 Cri LJ 1723 and that of a
single Judge following it in Ramkishan v. State Cri Revn No. 398 of 1965
D/-28-7-1966 : ILR (1970) Madh Pra 510 and Bhagwan v. State Cri Revn. No. 399 of
1965 (Madh Pra) both decided on 28-7-1966.

     (ii) The respondents were protected by Section 19(2) of the Act inasmuch as
they had purchased the mustard oil i.e. the article of food, in sealed tins,
bearing a label that the article was hundred per cent. pure.

   4. As to the first, the correctness of the view taken by this Court in State
of Madhya Pradesh v. Abbasbhai 1967 Cri LJ 1723 (Madh Pra) (Supra) was
questioned before a Full Bench in State of Madhya Pradesh v. Chhotekhan
Nannekhan and the Full Bench has

   overruled it. That being so, the acquittal of the respondents on the ground
that the report of the Public Analyst, Ex.-11 was inadmissible cannot be
sustained.

   5. As to the second ground the learned Magistrate has rightly upheld the plea
in defence viz, that the respondents having sold the mustard oil in the same
state as they purchased in sealed tins from the manufacturer i.e. bearing the
manufacturer's label of absolute purity, were protected under Section 19(2) of
the Act. which reads as follows:

     19(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.

   6. There can be no doubt that the respondents had purchased the mustard oil
in question from the manufacturers vide their bijak, Ex-D-2,. The learned
Counsel for the Municipal Corporation, however, draws our attention to the
testimony of Gangaprasad (DW 1), a partner of M/s. Uma Shankar Oil Mills,
Allahabad and Krishna Kumar (DW 3), Munim of the respondents, and urges that the
respondents are a firm of commission agents and the property in the goods
remained with the manufacturer. On the basis of that evidence, he contends that
the respondents had not purchased the goods. The contention can hardly be
accepted,

   7. The decision of Vivian Bose, J. in Kalyanji Kuwarji v. Tirkaram Sheolal
AIR 1938 Nag 254 on which reliance was placed, instead of supporting the
Municipal Corporation, is against it. Bose, J. stated that commission agents are
no doubt agents within Section 182 of the Contract Act but are not agents pure
and simple. They are agents up to a point of time, and to that extent they stand
in a position of active confidence towards their principals, but beyond that
they are not agents in the real sense of the term, and the relationship between
the parties from then on is one of debtor and creditor. The position of a pucca
adhatia is well settled. The law is stated in Mulla's Contract Act, 9th Ed.,
p-710.

     In order to constitute selling agency, goods should be sold to the customer
introduced by the agent not on behalf of the agent but on behalf of the
principal. When a wholesale dealer sells goods of a manufacturer for his own
profit, he is not an agent of the manufacturer and the mere insertion that he
shall be deemed to be an agent does not make him one.

   Here, the Food Inspector admittedly purchased the samples, and from that
point of time onwards, the relationship between the respondents and their
suppliers was that of debtor and creditor, but vis-a-vis the Food Inspector, the
respondents were the sellers.

   8. In our opinion, the respondents were clearly protected under Section
19(2)(i) of the Act. Rule 12-A speaks of Warranty, which runs thus:

     Rule 12-A - WARRANTY - Every trader selling an 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 a 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." Admittedly, there was
no such warranty in the prescribed form in the instant case. The respondents
can, however, rely on the proviso to Rule 12-A. The testimony of M. B.
Shrivastava, Food Inspector (PW 1) clearly shows that he bought the samples from
out of sealed tins, i.e. from tins bearing the manufacturer's lebel guaranteeing
purity. The requirements of the proviso to Rule 12-A are clearly fulfilled in
the present case. That being so, the respondents shall not be deemed to have
committed any offence by reason of Section 19(2) of the Act (See, Rajaldas G.
Pamnani v. State of Maharashtra )

   9. The result, therefore, is that the appeal fails and is dismissed.