# M/S. BABURALLY SARDAR AND ANOTHER v. CORPORATION OF CALCUTIA

- **Citation:** [1966] 2 S.C.R. 815
- **Court:** Supreme Court of India
- **Decided:** 1965-11-29
- **Case number:** Criminal Appeal No. 177 of 1963
- **Bench:** J. R. Mudholkar, R. S. Bachawat, P. Satyanarayana Raju
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-s-baburally-sardar-and-another-v-corporation-of-calcutia-3755
- **Pages:** 7

## Headnote

Prevention of Food Adulteration Act, 1954 (37 of 1954), s. 19(2)
and proviso to Rule 12-A-Descrz'ption of contents on label of tinContents describ,ed
as "Full
cream sweetened condensed 1nilk''
and
"scle/1/ifically preserved pure and produced from healthy cow's milk''-
C
Description lvhether an1ounts to lvarranty under the Act.
D
E
F
G
H
Samples of a certain brand of tinned condensed
milk were
taken
from the appellant>' shop by the Food Inspector. The Public Analyst
found the fat content of the condensed
milk below standard. When
prosecuted uuder s. 16(1) (a) (i) of the Prevention of Food Adulteration
Act, 1954 the appellants took a plea based on s. 19(2) of the Act and
claimed that the label on the tins was a warranty within the meaning
of that section as well as of the proviso to Rule 12-A. The label on the
tins described the milk as "Full cream sweetened condensed milk made
on formula of Holland product" and inter alia said : "The contents of
the tin are scientifically preserved, pure and produced
from
healthy
cow's milk." The trial Magistrate
accepted the
appellants'
plea and
acquitted them but on appeal
by the State the High Court convicted
them. They appealed to this Court with certificate.
HELD: (i) Defence under s. 19(2) of the Act was available to the
appeHants provided they showed in the first place, that what was stored
by them for sale to the purchasers demanding condensed milk was in
fact milk which had been concentrated from full cream milk so as to
conform to the standard of quality given in A 11.07 of
Appendix B .
For, it would be milk which satisfies the standard
prescribed
therein
which can be regarded as 'condensed milk' under the Act. Since however the milk stored by the appellants was found to be below standard
it could not be regarded as 'the same in nature!
substance and quality
as that demanded by the purchaser'. Nor again
had
the
appellants
obtained a \Varranty in the prescribed form.
Thus the requirements of
s. 19(2) (i) were not satisfied. [819 B-C]
(ii) No doubt, under the proviso to Rule 12-A no warranty in the
prescribed form is necessary if the label on the article of food or cash
memo delivered by the trader to the vendor in respect of that article
contains a warranty certifying that the food contained in the container
or mentioned in the cash memo is the same in nature!
substance and
quality as demanded by the vendor.
But the labels on the tins stored
by the appellants contained no warranty of the kind referred to in the
proviso. The labels were not in the form prescribed under r. 42B(b)
and it was not possible from the matter printed thereon to ascertain by
reference to standard tables the quantity of milk solids and fat from the
quantity of milk condensed and from the quantity of condensed milk
contained in the tin.
[819 D-820 D]
(iii) The words "Full cream" 011 the tin did not satisfy the requirements of the Jaw either.
'Full cream' has nowhere been defined in the
Act or the rules. Without knowing the quantity of 'full cream' which
816
SUPREME
COURT REPORTS
[1966] 2 S.C.R.
was condensed in the milk contained in each tin it was impossible even
to calculate the quantity of milk solids and fat in each tin. The label
therefore was of little assistance to the appellants. [820 D-E]
Similarly the cash memos carried no warranty whatsoever.
(iv) When a vendor accepts from the trader tins purported to be of
condensed milk bearing a label of the above kind he cannot be said to
have "had no reason to believe" that it was not condensed milk of the
prescribed nature, substance and quality. It may be that the appellants
sold the tins in the same state as they purchased them.
But this fact
was by itself not sufficient to absolve them. [820 Fl
Per Bachawat, J-The defence under s. 19(2) of the Act could not
succeed as the appellants failed to prove that they purchased the articles
of food with a written wananty in the prescribed form. The label on the
A
B
tin container gave a description of the article of
foo

## Text

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A
M/S. BABURALLY SARDAR AND ANOTHER
v.
CORPORATION OF CALCUTIA
November 29, 1965
815
B
(J. R. MUDHOLKAR, R. S. BACHAWAT AND P. SATYANARAYANA
RAJU, JJ.]
Prevention of Food Adulteration Act, 1954 (37 of 1954), s. 19(2)
and proviso to Rule 12-A-Descrz'ption of contents on label of tinContents describ,ed
as "Full
cream sweetened condensed 1nilk''
and
"scle/1/ifically preserved pure and produced from healthy cow's milk''-
C
Description lvhether an1ounts to lvarranty under the Act.
D
E
F
G
H
Samples of a certain brand of tinned condensed
milk were
taken
from the appellant>' shop by the Food Inspector. The Public Analyst
found the fat content of the condensed
milk below standard. When
prosecuted uuder s. 16(1) (a) (i) of the Prevention of Food Adulteration
Act, 1954 the appellants took a plea based on s. 19(2) of the Act and
claimed that the label on the tins was a warranty within the meaning
of that section as well as of the proviso to Rule 12-A. The label on the
tins described the milk as "Full cream sweetened condensed milk made
on formula of Holland product" and inter alia said : "The contents of
the tin are scientifically preserved, pure and produced
from
healthy
cow's milk." The trial Magistrate
accepted the
appellants'
plea and
acquitted them but on appeal
by the State the High Court convicted
them. They appealed to this Court with certificate.
HELD: (i) Defence under s. 19(2) of the Act was available to the
appeHants provided they showed in the first place, that what was stored
by them for sale to the purchasers demanding condensed milk was in
fact milk which had been concentrated from full cream milk so as to
conform to the standard of quality given in A 11.07 of
Appendix B .
For, it would be milk which satisfies the standard
prescribed
therein
which can be regarded as 'condensed milk' under the Act. Since however the milk stored by the appellants was found to be below standard
it could not be regarded as 'the same in nature!
substance and quality
as that demanded by the purchaser'. Nor again
had
the
appellants
obtained a \Varranty in the prescribed form.
Thus the requirements of
s. 19(2) (i) were not satisfied. [819 B-C]
(ii) No doubt, under the proviso to Rule 12-A no warranty in the
prescribed form is necessary if the label on the article of food or cash
memo delivered by the trader to the vendor in respect of that article
contains a warranty certifying that the food contained in the container
or mentioned in the cash memo is the same in nature!
substance and
quality as demanded by the vendor.
But the labels on the tins stored
by the appellants contained no warranty of the kind referred to in the
proviso. The labels were not in the form prescribed under r. 42B(b)
and it was not possible from the matter printed thereon to ascertain by
reference to standard tables the quantity of milk solids and fat from the
quantity of milk condensed and from the quantity of condensed milk
contained in the tin.
[819 D-820 D]
(iii) The words "Full cream" 011 the tin did not satisfy the requirements of the Jaw either.
'Full cream' has nowhere been defined in the
Act or the rules. Without knowing the quantity of 'full cream' which
816
SUPREME
COURT REPORTS
[1966] 2 S.C.R.
was condensed in the milk contained in each tin it was impossible even
to calculate the quantity of milk solids and fat in each tin. The label
therefore was of little assistance to the appellants. [820 D-E]
Similarly the cash memos carried no warranty whatsoever.
(iv) When a vendor accepts from the trader tins purported to be of
condensed milk bearing a label of the above kind he cannot be said to
have "had no reason to believe" that it was not condensed milk of the
prescribed nature, substance and quality. It may be that the appellants
sold the tins in the same state as they purchased them.
But this fact
was by itself not sufficient to absolve them. [820 Fl
Per Bachawat, J-The defence under s. 19(2) of the Act could not
succeed as the appellants failed to prove that they purchased the articles
of food with a written wananty in the prescribed form. The label on the
A
B
tin container gave a description of the article of
food but it did not
C
give a warranty certifying that the food was the same in nature, substance and quality as demanded by the vendor.
In the absence of such
a warranty, the appellants had failed
to establish the
defence under
s. 19(2) read with r. 12-A and Form VI.A. [821 A-B]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
177 of 1963.
Appeal from the judgment and order dated May 14, 1963
of the Calcutta High Court in Criminal Appeal No. 380 of 1962.
S. C. Das Gupta and Sukumar Ghose, for appellants.
C. K. Daphtary, Attorney-General, A. N. Sinha and P. K.
Mukherjee, for the respondent.
The Judgment of MUDHOLKAR and SATYANARAYANA RAJU JJ.
was delivered by MuoHOLKAR J. BACHAWAT J. delivered a separate Judgment.
Mudholkar, J.
This is an appeal by certificate from a judgment of the High Court of Calcutta setting aside the acquittal of
M/s. Baburally Sardar of Steward Hogg Market, Calcutta, appellant no. 1 and of Abdul Razzak, a partner of that firm, appellant
no. 2, in respect of an offence under s. 16(l){a)(i) of the Prevention of Food Adulteration Act, 1954 read with s. 7 ( 1) of that
Act.
The facts which are not in dispute are briefly these : On
June 1, 1960 a Food Inspector of the Corporation of Calcutta
visited the shop of the appellants.
At that time Abdul Razzak
was in charge.
He took samples of Cornela Brand condensed
milk from the shop, one of which was sent to the Public Analyst.
Upon an analysis made by the Public Analyst the milk fat content of the condensed milk was found to be 3.4% which did not
conform to the prescribed standard in respect of condensed milk.
A complaint was thereupon lodged against the firm before the
Municipal Magistrate and Additional Chief Presidency Magistrate,
D
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BABURALLY v. CORPORATION (Mudholkar, I.)
81 T
A Calcutta.
Apart from the firm five other persons, including Abdul
Razzak were also named as accused persons.
One of the accused
persons, Mohd. Yasin did not appear but it was represented to
the learned Magistrate that the person was not mentally fit.
Thereupon the counsel for the Corporation gave him up.
The
other accused persons pleaded not guilty and were eventually acB quitted by the Magistrate.
Against that order an appeal was preferred before the Hjgh Court under s. 417 of the Code of Criminal
Procedure.
The High Court, however, allowed the appeal only
against the appellants but dismissed it against the remaining
accused persons.
c
The defence of the appellants was based upon s. 19 ( 2) of the
Act and was briefly this : The tins of condensed milk were purchased by the firm on May 3, 1960 from Messrs S. Choudhury
Brothers under a document of sale Ex. A.
At that time the firm
had demanded a warranfy from the traders, that is, Messrs. Choudhury Brothers, but they did not furnish a written guarantee on
D the ground that a certificate and a warranty had been given qn
each tin of condensed milk.
The appellants further pleaded that
the tins were in the same condition in which they were when they
were purchased from Messrs Choudhury Brothers and that they
had no reason to believe that there was any alteration in their
nature, substance or quality subsequent to the purchase of the tins.
E It may be mentioned that an attempt was made to secure the appearance of S. Choudhury of Messrs. Choudhury Brothers, but it
failed because he could not be traced at the address given in the
cash memo.
F
G
H
Section 16(1 )(a)(i) of the Act, amongst other things, provides that if any person, whether by himself or by any person on
his behalf stores or sells any article of food in contravention of
any provisions of the Act or of the rules made thereunder he shall
be punishable for the first offence with imprisonment for a term
which may extend to one year and/ or with fine which may extend
to Rs. 2000 or both. Section 2(i) defines the word "adulterated".
According to the definition an article of food shall be
deemed to be adulterated in various circumstances, one of which
is where the quality or purity of the article falls below the prescribed standard. In the Act "prescribed" means prescribed by the
rules.
Rule 5 of the Rules framed by the Central Government
under s. 23(1) of the Act read withs. 4(2) thereof runs thus:
"Standards of quality of the various articles of food
specified in Appendix B to these rules as defined in that
appendix."
818
SUPREME
COURT
REPORTS
(1966] 2 S.C.R.
The definition of standard of quality for condensed milk is given
A
in A.11.07 of Appendix B and runs thus :
"Condensed milk means milk which has been concentrated from full cream milk by removal of part of
its water with or without the addition of sugar, and
includes the article commonly known as
'evaporated
milk' but does not include the article commonly known
as 'dtied milk' or 'milk powder'.
It shall be free from
preservatives other than sugar and contain at least 31
per cent of milk solids of which at least 9 per cent shall
be fat."
·
As already stated, the Public Analyst found that the fat content
of the condensed milk was only 3.4% whereas
the minimum
prescribed in the Appendix is 9 % . It is, therefore, clear that
the condensed milk stored by the appellants for sale was adulterat·
ed and, therefore, there was a breach of the provisions of s. 16 ( 1)
(a)(i) of the Act.
In view of the provisions of s. 19 (1) it was not open to the
appellants to contend that they were ignorant of the nature,
substance and quality of the condensed milk sold by them. Subsection (2) of s. 19, however, furnishes a defence to a vendor
ignorant of the nature, substance and quality of food sold by him
provided he satisfies the requirements of that provision. Omitting
the second proviso thereto, which is not relevant in the present
ease, sub-s. (2) of s. 19 reads thus:
"(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 purchasen it:
B
c
D
E
F
G
Provided that such a defence shall be open to the
vendor only if he has submitted to the food inspector
H
or the local authority a copy of the warranty with a
written notice stating that he intends to rely on it and
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BABURALLY v. CORPORATION (Mudholkar, !.)
819
specifying the name and address of the person from
whom he received it, and has also sent a like notice of
his intention to that person."
The aforesaid defence was available to the appellants provided
that they showed, in the first place, that what was stored by them
B for sale to purchasers demanding condensed milk was in fact milk
which had been concentrated from full cream milk so as to conform to the standard of quality given in A.11.07 of Appendix B.
For, it would be milk which satisfies the standard prescribed
therein which can be regarded as 'condensed milk' under the Act.
Upon analysis, however, it was found that the so-called condensed
C milk contained in the samples taken by the Food Inspector from
the appellants was far inferior to that prescribed for "condensed
milk". It could, therefore, not be regarded as "the same in
nature, substance and quality as that demanded by the purchaser".
Nor again, had the appellant obtained a warranty in the prescribed
form.
Rule 12-A provides that every trader selling an article of
D food to a vendor shall deliver to the vendor a warranty in form
6-A, if required to do so by the vendor.
No such warranty was
demanded by the appellants, nor given by Messrs. S. Chaudhury
Brothers.
No doubt, under the proviso to the aforesaid sub-rule
no warranty in the prescribed form is necessary if the label on
the article of food or cash memo delivered by the trader to the
E vendor in respect of that article contains a warranty certifying
that the food contained in the container or mentioned in the cash
memo is the same in nature, substance and quality as demanded
by the vendor.
Mr. Das Gupta for the appellants, says that the
labels on the tins satisfy the requirements
of the proviso and
F faintly suggested that the cash memo also satisfies the conditions.
The contents of the label upon which reliance is placed by him
are as follows :
G
H
" 'Cornela'-Full Cream sweetened condensed milk
made on formula of Holland Product.
'Cornela Brand'-The contents of the tin are scientifically preserved, pure and produced from healthy Cow's
milk. Cornela full cream condensed milk easily digestable and are ideal food for babies.
Special· care is
taken
to
maintain freshnessPrepared by Kwality Diary."
This label contains no warranty of the kind referred to in the
proviso. Moreover, it is not even in the form given for a label
1!20
SUPREME
COURT
REPOR1S
[ 1966] 2 S.C.R.
prescribed for "Sweetened condensed milk".
Under r. 42-B(b)
A
the label prescribed is as follows :
CONDENSED FULL CREAM MILK
(Sweetened f
This tin contains the equivalent of
...... litres of milk with sugar added.
It may be that the inscription on the prescribed label "This tin
-contains an equivalent of ........ litres of milk with sugar added"
was meant to serve the purpose of a warranty though it is couched
in different language.
For, it may be possible to ascertain by
reference to standard tables the quantity of milk solids and fat
from the quantity of milk condensed and from the quantity of
-condensed milk contained in the tin.
It would not be possible
even to do this on the basis of the particulars given on the labels
borne on the tins which were taken as samples by the Food Inspector from the appellants.
Mr. Das Gupta strongly relied upon
the words "Full Cream" and said that where condensed milk is
said to have been obtained from full cream the requirements of
law must be deemed to have been satisfied.
For one thing "Full
<:ream" has nowhere been defined in the Act or the rules.
More·
over, without knowing the quantity of "Full cream" which was
condensed in the milk contained in each tin it is impossible even
to calculate the quantity of milk solids and fat in each tin. The
label, therefore, is of little assistance to the appellants. Moreover,
when a vendor accepts from the trader tins purported to be of
-condensed milk bearing a label of this kind he cannot be said to
have "had no reason to believe" that it was not condensed milk of
the prescribed nature, substance and quality. It may be that the
appellants sold them in the same state as they purchased them.
But this fact is by itself not sufficient to absolve them. As for the
so-called cash memo it is sufficient to point out that all that it
specifies is :
B
c
D
E
F
Quantity
Description
Rate
Per
Case
Amount
G
C/C Cornela Milk
c 70/-
Rs. 70·00
There is not a whisper of any warranty on it.
In the circumstances, therefore, the High Court was right in
setting aside the acquittal of the appellants and convicting them
of the offence under s. 16 (1 )(a) of the Act and sentencing them
to pay fine of Rs. 2,000 each. The appeal is without merit and is
dismissed.
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BABURALLY v. CORPORATION (Bachawat, J.)
821
A
Bachawat, J. The defence under s. 19 ( 2) of the Prevention
of Food Adulteration Act, 1954 cannot succeed, as the appellants
failed to prove that they purchased the articles of food with a
written warranty in the prescribed form.
The label on the tin
container gave a description of the article of food, but it did not
give a warranty certifying that the food is the same in nature,
B substance and quality as demanded by the vendor. In the absence
of such a warranty, the appellants have failed to establish the
defence under s. 19(2) read with R. 12(a) and Form VI-A. Had
there been such a written warranty on the label, the appellants
would have established the defence.
I agree that the appeal be
dismissed.
Appeal dismissed.