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 co court 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. Umashanker 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 JLJ 779 : 1967 MPLJ 872 and that of a single Judge following it, in Ramkishan v. The State CR No. 398 of 1965 & Bhagwan v. The State CR No. 399 of 1965, 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 percent pure.

4. As to the first, the correctness of the view taken by this Court in State of Madhya Pradesh v. Abbasbhai, (Supra), was questioned before a Full Bench in State of Madhya Pradesh v. Chhotekhan Nannekhan : 1970 JLJ 876 : AIR 1970 MP 29 , 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-p-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 manufacturers 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-p-D-2. The learned counsel for the Municipal Corporation, however, drawever, draws our attention to the testimony of Gangaprasad (DW-1), a partner of M/s. Umashankar Oil Mills, Allahabad and Krishnakumar (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 Shivlal & Ors. 23 MPLC 85 : AIR 1938 Nag. 354 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 Mullas 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, delivery 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 manufactures label 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 : AIR 1975 SC 189 .

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