Chunduri Gopalakrishna Murthy Vs. State - Court Judgment

Excerpt:
- all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default.ordergangadhara rao, j.1. in this case the petitioner had been convicted for an offence under section 16(1-a) (sic) read with sections 7 and 2 (a) and (j) of the prevention of food adulteration act as amended by act 34 of 1976 and was sentenced for one year and also to pay a fine of rs. 2,000 and in default to suffer simple imprisonment for 9 months. the petitioner is having a fancy goods shop at repalle. on 31-12-1976 the food inspector of repalle municipality went to the petitioners shop and purchased 1500 grams of sweet peppermints by paying him rs. 9/-. the sample was sent to the analyst. he gave his opinion that the sweets contained rhodamin b, a coal tar dye, the use of which is prohibited. the defence of the accused is that he had purchased the peppermint packets in polythene packets of one k. g. each from one srinivasa confectionery a manufacturer of tenali, and he sold the same packets to the food inspector. to evidence his purchase, he had produced the cash bill, ex. d-1 d/- 20-11-1976. the accused examined himself as d.w. 2. the learned judge believed his version that he had purchased the peppermints from srinivasa confectionery, tenali, under the cash bill, ex. d-l. but on the ground that the cash bill does not give the nature and quality of the article that was sold he held that it could not be treated as a warranty. aggrieved by that judgment the accused has filed this revision.2. section 19 of the prevention of food adulteration act provides that a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or mis-branded articles of food if he proves that he had purchased the article of food from any manufacturer, distributor or dealer with a written warranty in the prescribed form and that the article of food while in his possession was properly stored and that he had sold it in the same state as he had purchased it. in this case the accused had purchased the peppermints from the manufacturer srinivasa confectionery, tenali. he had also sold them in the same state in which he had purchased them. but he did not have a written warranty in the prescribed form from the manufacturer.section 14 of the act reads as follows:14. manufacturers, distributors and dealers to give warranty.- no manufacturer or distributor of or dealer in, of any article of food shall sell such articles to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor. provided that a bill, cash memorandum or invoice in respect of the sale of any article of food given by a manufacturer or distributor or dealer in such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under this section. the proviso was inserted by amendment act 34 of 1976. the reason for introducing the proviso is stated in the joint committee report as follows. section 14 of the principal act imposes obligation on every manufacturer, distributor or dealer to give a warranty in writing in respect of the nature and quality of every article of food sold by him to a vendor. during the course of the evidence tendered before the committee the representatives of the retailers represented that the requirement of the law was not being followed by the manufacturers or dealers as a result of which the vendors had to suffer. the committee has remedied the situation by inserting a proviso to the section to the effect that a bill, cash memorandum or invoice given by a manufacturer, distributor or dealer in respect of any article of food purchased by the vendor shall be deemed to be a warranty. 3. a reading of the proviso shows that a bill, cash memorandum or invoice in respect of the sale of any article of food given by a manufacturer or distributor of or dealer in such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under that section. in this case, it is found that the cash bill ex. d-1 was given to the accused by the manufacturer of the peppermints. if so it will be deemed to be a warranty in writing in the prescribed form given by the manufacturer under section 14. if he had produced the warranty there is no question of penalising him. the learned judge evidently erred in holding that because the cash bill did not give the details as to the nature and quality of the articles sold it cannot be treated as a warranty.4. the learned public prosecutor submitted that under rule 12-a every manufacturer, distributor or dealer selling an article of food to a vendor shall give either separately or in the bill, cash memo or label a warranty in form vi-a. then he had referred me to form vi-a and submitted that since the cash bill in this case does not contain the warranty in form vi-a, the proviso to section 14 has no application. rule 12-a was there before the insertion of the proviso to section 14. the proviso does not say that the cash bill should be in accordance with rule 12-a. if a bill is given in terms of rule 12-a then that itself is the warranty and there is no question of deeming it to be a warranty under the proviso to section 14. on the other hand the proviso to section 14 makes it clear that if a bill is given for the sale of an article by the manufacturer it would be deemed to be a warranty given by the manufacturer.5. consequently i hold that the conviction of the petitioner is not sustainable and i acquit him. accordingly the revision is allowed. if he had paid the fine, it shall be refunded to him.

Judgment:
ORDER

Gangadhara Rao, J.

1. In this case the petitioner had been convicted for an offence under Section 16(1-A) (sic) read with Sections 7 and 2 (a) and (j) of the Prevention of Food Adulteration Act as amended by Act 34 of 1976 and was sentenced for one year and also to pay a fine of Rs. 2,000 and in default to suffer simple imprisonment for 9 months. The petitioner is having a fancy goods shop at Repalle. On 31-12-1976 the Food Inspector of Repalle Municipality went to the petitioners shop and purchased 1500 grams of sweet peppermints by paying him Rs. 9/-. The sample was sent to the Analyst. He gave his opinion that the sweets contained Rhodamin B, a coal tar dye, the use of which is prohibited. The defence of the accused is that he had purchased the peppermint packets in polythene packets of one K. G. each from one Srinivasa Confectionery a manufacturer of Tenali, and he sold the same packets to the Food Inspector. To evidence his purchase, he had produced the cash bill, Ex. D-1 D/- 20-11-1976. The accused examined himself as D.W. 2. The learned Judge believed his version that he had purchased the peppermints from Srinivasa Confectionery, Tenali, under the cash bill, Ex. D-l. But on the ground that the cash bill does not give the nature and quality of the article that was sold he held that it could not be treated as a warranty. Aggrieved by that judgment the accused has filed this revision.

2. Section 19 of the Prevention of Food Adulteration Act provides that a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or mis-branded articles of food if he proves that he had purchased the article of food from any manufacturer, distributor or dealer with a written warranty in the prescribed form and that the article of food while in his possession was properly stored and that he had sold it in the same state as he had purchased it. In this case the accused had purchased the peppermints from the manufacturer Srinivasa Confectionery, Tenali. He had also sold them in the same state in which he had purchased them. But he did not have a written warranty in the prescribed form from the manufacturer.

Section 14 of the Act reads as follows:

14. Manufacturers, distributors and dealers to give warranty.- No manufacturer or distributor of or dealer in, of any article of food shall sell such articles to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor. Provided that a bill, cash memorandum or invoice in respect of the sale of any article of food given by a manufacturer or distributor or dealer in such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under this section. The proviso was inserted by Amendment Act 34 of 1976. The reason for introducing the proviso is stated in the Joint Committee Report as follows. Section 14 of the principal Act imposes obligation on every manufacturer, distributor or dealer to give a warranty in writing in respect of the nature and quality of every article of food sold by him to a vendor. During the course of the evidence tendered before the committee the representatives of the retailers represented that the requirement of the law was not being followed by the manufacturers or dealers as a result of which the vendors had to suffer. The Committee has remedied the situation by inserting a proviso to the section to the effect that a bill, cash memorandum or invoice given by a manufacturer, distributor or dealer in respect of any article of food purchased by the vendor shall be deemed to be a warranty.

3. A reading of the proviso shows that a bill, cash memorandum or invoice in respect of the sale of any article of food given by a manufacturer or distributor of or dealer in such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under that section. In this case, it is found that the cash bill Ex. D-1 was given to the accused by the Manufacturer of the peppermints. If so it will be deemed to be a warranty in writing in the prescribed form given by the manufacturer under Section 14. If he had produced the warranty there is no question of penalising him. The learned Judge evidently erred in holding that because the cash bill did not give the details as to the nature and quality of the articles sold it cannot be treated as a warranty.

4. The learned Public Prosecutor submitted that under Rule 12-A every manufacturer, distributor or dealer selling an article of food to a vendor shall give either separately or in the bill, cash memo or label a warranty in Form VI-A. Then he had referred me to Form VI-A and submitted that since the cash bill in this case does not contain the warranty in Form VI-A, the proviso to Section 14 has no application. Rule 12-A was there before the insertion of the proviso to Section 14. The proviso does not say that the cash bill should be in accordance with Rule 12-A. If a bill is given in terms of Rule 12-A then that itself is the warranty and there is no question of deeming it to be a warranty under the proviso to Section 14. On the other hand the proviso to Section 14 makes it clear that if a bill is given for the sale of an article by the manufacturer it would be deemed to be a warranty given by the manufacturer.

5. Consequently I hold that the conviction of the petitioner is not sustainable and I acquit him. Accordingly the revision is allowed. If he had paid the fine, it shall be refunded to him.