ORDER
Rajesh Balia, J.
1. This petition is directed against the order of learned Chief Judicial Magistrate, Jaipur City dated 31.3.1999 in Case No. 469/96 rejecting the application of the petitioner for discharging him in view of the warranty by the manufacturer printed on, the packing of the commodity under Section 19(2) of the Prevention of Food Adulteration Act, 1954 inter alia on the ground that he was merely a purchaser from the manufacturer and the commodity was purchased from him by the food Inspector, in sealed container which carried with it a warranty from the manufacturer/vendor in the prescribed form which protects him under Section 19(2) of the Prevention of Food Adulteration Act, 1954. Such printed warranty discharged him from burden of proving the existence of such warranty. Therefore, he should be discharged.
2. The learned Additional Chief Judicial Magistrate relying on the judgment of the Delhi High Court in State (Delhi Admn.) v. Pawan Kumar Chopra and Anr. 1908 (2) FAC 202 has rejected this prayer. Hence this petition.
3. The learned Counsel for the petitioner has urged that the warranty as envisaged under Section 14 of the Act of 1954 is a complete defence of the petitioner who is not the manufacturer but purchaser from the manufacturer of the commodity. Once the warranty is proved from the sealed cover itself, he is not liable to be prosecuted and trial may proceed against rest of the accused persons. He placed reliance on following passage from a Supreme Court decision in S.S. Dhanoa v. Municipal Corporation of Delhi 1982(1) FAC 214:
Before parting with the case, we would like to advert to one aspect. It is common ground that the honey in question was sold in a sealed container bearing the manufacturer’s warranty as to quality as required under Rule 12-A of the Prevention of Food Adulteration Rules, 1955. That being so, the learned Magistrate shall first determine whether or not “the appellant was protected under Section 19(2) of the Prevention of Food Adulteration Act, 1954.
4. The learned Counsel for the petitioner in support of his connection further urged that the fact of warranty given by the vendor manufacturer has been admitted in the complaint itself.
5. The learned Public Prosecutor on the other hand contended that Section 19(2) envisages that the defence is available to vendor who himself is not a manufacturer in case the prosecution is launched. Therefore, the launching of prosecution cannot before stalled by presuming the defence. It is a principle to be applied in all cases that accused vendor, who himself is not manufacturer of the food articles, can plead, can prove the defence available to him under the Statute during the course of trial and he cannot claim discharge in piecemeal trial. He placed reliance on the Delhi High Court judgment referred to above.
6. I have considered the rival contentions and the provisions of the Act. I am of the opinion that the contention of the learned Counsel for the petitioner is not well founded. Section 19 of the Act of 1954 reads as under:
Defence which may or may not be allowed in prosecutions under this Act.-(1) It shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale.
(2) A vendor shall not be deemed to have committed an offence pertaining to sale of any adulterated or misbranded article of food if he proved-
(a) that he purchased the article of food-
(I) in a case where a licence is prescribed for the sale thereof, from a duly licensed 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.
(3) Any person by whom a warranty as is referred to (in Section 14) is alleged to have been given shall be entitled to appear at the hearing, and given evidence.
7. An analysis of Section 19 clearly goes to suggest that primary march is ignorance of the nature, substance or quality of food sold by the vendor or that the purchaser having purchased any article for analysis was not prejudiced by the sale.
8. Apparently, analysis of the provision goes to show that before the defence can be effectively used by the accused-vendor available to him under Section 19(2) he has to prove the two conditions; firstly that he purchased the article of food from a duly licensed manufacturer, distributor or dealer where a licence is prescribed for the sale thereof and in any other case from any manufacturer, distributor or dealer with a written warranty in the prescribed form. Secondly, he has further to prove that article of food while in his possession was properly stored and was sold in same condition in which it was purchased by him. Both conditions are cumulative and not alternate. Burden of proving existence of both conditions is on the person who takes such defence.
9. In the present case on the material on record neither of the things stand proved. At this stage, it remains a plea taken by the applicant. It must further to be noticed that in the complaint no mention has been made of any warranty existing on the seal cover. Moreover it was merely status of the defence taken by the petitioner that he was purchaser of the things from a manufacturer ‘Monsanto Manufacturers Pvt. Ltd.’ but had rested its allegations with that, therefore, the petitioner’s contention that it is an admitted case that the petitioner sold the goods in a sealed cover as purchased, apart from manufacturer, which contained a warranty, is not borne out from the complaint to which he was referred.
10. Secondly, even assuming that as a result of written warranty on container from manufacturer, may give rise to presumption that there is a warranty from manufacture, it does not carry any presumption either that manufacturer was duly licenced to manufacturer, distributor or dealer where such licence is required to be taken, or in any other case does not carry any presumption about written warranty in prescribed form. The existence of these facts is integral part of first condition. Even the presumption about existence of a warranty is only a rebuttable presumption and cannot be considered as a conclusive proof of fact of existence of warranty with ancillary facts necessary to invoke Sub-section (2) of Section 19 by the vendor.
11. In addition thereto, the Second Condition under Section 19(2)(b) has to be shown to exist simultaneously with existence of warranty or purchase from licenced dealer, that after purchase the vendor has stored such food article properly and was sold in the same condition in which it was purchased by him from the manufacturer. No presumption exists under law that a food article which was found adulterated within the meaning of PFA Act, was properly stored and sold in the same condition to the buyer. These facts are to be proved by the accused vendor in addition to prove that he purchased the goods from licenced dealer or manufacturer with written warranty in prescribed form. These facts remain to be proved in the present case.
12. Significantly, Clause (3) of Sub-section (1) of Section 19 is equally important which provide an opportunity to manufacturer/dealer from whom the indicted commodity alleged to be purchased by the vendor, to absolve himself from the liability as a warranter by proving that the defence taken by the buyer is incorrect or that he has not properly stored the article of food after purchase or that it has not been sold in the State as it was purchased. Therefore, the defence of the seller and the defence of manufacturer are interlinked and trial of the two is not envisaged distinctly. It may result in that after the vendor is discharged at initial stage by finding that he has sold the goods under a warranty and article of food was properly sold and- the same has been stored in the same State, takes away the vital right conferred in favour of manufacturer-vendor. Therefore, in my opinion, the contention raised by the petitioner on the construction of Section 19 is not well founded.
13. In this view of the matter, I am of the opinion that the view expressed by the Delhi High Court in State (Delhi Admin.) v. Pawan Kumar Chopra and Anr. (supra) shall apply in the case in hand. In the said case it was held that it will be anomalous position that vendor is discharged accepting his plea of warranty as contained in Section 19(2) but later on the Court may give a finding If evidence is led by other accused to show that in fact vendor was not entitled to the benefit of Section 19(2). To avoid conflict of ordeis, the Magistrate should not discharge vendor on this ground till complete trial has taken place.
14. The reference to the Supreme Court decision in S.S. Dhanoa’s case (supra) is not apt. firstly, it was not the issue which was directly raised in the said case. It was primarily with reference to the claim to protection as public servant by the appellant, who was member of the Indian Administrative Service and whose services were placed at its disposal. It is before parting with the case that the Court has made the aforesaid observation on the common ground between the parties on admission that Honey in question was sold in a sealed container bearing the manufacturer’s warranty as to quality as required’ under Rule 12-A of the Rules of 1955. Obviously, it is not an authority on the interpretation of Sub-section (2) and Sub-section (3) on admitted facts where the facts are yet to be proved about the existence of a warranty or proper storage of article of food and sale in the same condition in which it was purchased from the manufacturer.
15. In these circumstances, I do not find any force in the revision petition and the same is hereby dismissed.
16. Interim order is vacated.
17. The learned trial Court is directed to proceed with the trial of the case as early as possible as it has already much delayed because of these proceedings.