SINGHAL, J. - (1.) THIS Criminal revision application has been directed by the accused petitioner against the judgment dated dated 24. 10. 1994 passed by the learned Addl. Sessions Judge. Sikar in Criminal Appeal No. 74/1993, 46/1992 confirming the judgment dated 02. 11. 1992 passed by the learned Chief Judicial Magistrate Sikar in Cr. Case No. 97/1982 by which he has convicted the accused petitioner for offence under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (Herein after referred to as the "act of 1954") and sentenced him to under 6 months rigorous imprisonment and a fine of Rs. 1,000/ -. In default of payment of fine, to suffer three months simple imprisonment.
(2.) TO prove the case against the accused petitioner, the prosecution has relied on the evidence of the Food Inspector and the Public Analyst. The Public Analyst has opined in his report (Ex. P9) that the sample is adulterated as it does not confirm the prescribed standard. He has not mentioned that the sample sent to him is injurious to the health. It has been submitted by the learned counsel for the petitioner that the sample is of cloves (Laungs) a primary food which is not injurious to health, therefore, the conviction cannot be recorded against the accused petitioner. In support of his submission, he has relied upon the judgment reported in the case of Rakesh Kumar vs. State of U. P. (1 ). He has also relied upon the judgment of the Gujrat High Court. rendered in the case of Kishore Kumar Venilal Patel vs. Davaswarup Bhilalbhai Rao and Another "primary Food" has been defined in Section 2 (XIIa) of the Act. 1954 as under:- " Primary Food" means any article of food being a produce of agriculture of horticulture in its, natural form: Section 2 (m) of the Act, runs as below:- " If the quality or purity of the article falls below the prescribed standard of its constituents are present in quantities not within the prescribed limits of variability but which does not render if injurious to health: Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause. " In view of the above, clear and legal position the Cloves (Laung) is a primary food being a produce of agriculture or horticulture in its original from. The public analyst in its report (Ex. P. 9) has opined that the sample does not contain extraneous matter and insect damaged matter. He has only found violatale oil (Volume/weight) 8% and opined that the sample is adulterated as it does not confirm to the prescribed standard. The Public Analyst in its report has not specifically or clearly opined that the sample containing cloves is injurious to the health, the ratio of the above decision applies to the facts of the instant case. It is not the case of the prosecution that the accused petitioner has changed the shape of the purchased cloves (Laungs) The specific defence of the accused petitioner in the trial Court was that he had purchased the aforesaid cloves from M/s. Satyanarain Balmukund of Delhi under the Bill (Ex. D1) dated 31. 0. 1981. He had sold the cloves in the original shape which had been purchased by him from the aforementioned Firm. It has been contended by the learned counsel for the accused petitioner that both the Courts below have wrongly rejected the plea of defence under Section 19 (2) of the Act of 1954 and that the finding of the lower Court as regards the liability of the accused is perversed. S. 19 (2) of the Act, 1954 reads as under:- " A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if the proves:- (a) that he purchased the article of food- (i ). in case where a licence is prescribed for the sale thereof, from a duty licensed manufacturer, distributor or dealer. (ii ). in any other case, from any manufacturers, distributor or dealer, with a written warranty in the prescribed form. "
(3.) SINCE, the petitioner has produced the Bill/cash Memo Ex. D1) of Firm M/s. Satya Narain Bal Mukund of Delhi, issued by the manufacturer dealer to the vendor, it is a legal and valid warranty which cannot be disbelieved. The Gujrat High Court in the case of Ramanbhai Shivabhai Prajapati vs. State of Gujrat and Another (3), has held that if there is no written warranty in the prescribed from, the Cash Memo issued by the manufacturer or dealer to the vendor is held to be legal and valid warranty. In view of the above discussions, the Criminal Revision Petition is allowed. The judgment of conviction and sentence passed by he learned Chief Judl. Magistrate, Sikar and confirmed by the learned Addl. Sessions Judge Sikar, is hereby quashed and set-aside. The accused petitioner is acquitted of the offence to which he has been convicted and sentenced. If amount of fine has been paid, the same may be refunded back to the accused petitioner. The bail-bonds shall stand cancelled. .;