S.D. Singh, J.
1. This appeal and criminal appeal No. 547 of 1961, raise the same question of law and were, therefore, heard together. Both the appeals have been filed by Nagar Mahapalika of the City of Lucknow. The Food Inspector obtained samples of ghee from two shops, one that of Afaq Husain on 13th December, 1957, and the other from the shop of Durga Prasad Ganga Ram, which was owned by Gangs Ram, on 1st October, 1951. At Afaq Hussain's shop the ghee was sold to the Food Inspector by his sales man, Sarfaraz Husain, and at the shop of Durga Prasad Ganga Ram by Matu Ram. These samples were sealed in three separate bottles in each case and one bottle was handed over to the person from whom the ghee was purchased. Notice in Form VI was prepared by the Food Inspector under Clause (a) of Subsection (1) of Section 11 of the Prevention of Food Adulteration Act, XXXVII of 1954. At Afaq Husain's shop the notice was addressed to Afaq Husain but was handed over to Sarfaraz Husain, who made an endorsement thereon that six chhataks of ghee was sold by him to the Food Inspector, that it was sealed in three empty and clean phials in his presence and that of the witnesses, and that he received one of those sealed phialsas also the notice in Form VI as well as the price of ghee.
In the other case the notice was addressed to the Firm Durga Prasad Ganga Ram, but was handed over to Matu Ram, who made a similar endorsement on the duplicate copy of the notice. These samples were later on sent to the public analyst, who found in the case of ghee purchased at the shop of Afaq Husain to be containing small portion of fat or oil foreign to pure ghee after giving due allowance to all incidental and unavoidable admixture. In the sample in the case of ghee taken from the shop of Durga Prasad Ganga Ram, the sample was found to contain 26 per cent of free fatty acids over and above the maximum permissible limit of 3 per cent. Both the samples were thus found to be adulterated and Afaq Husain and Sarfaraz Husain, were, therefore, prosecuted under Section 7 read with Section 16 of the Prevention of Food Adulteration Act read with Rule 5 of the Prevention of Food Adulteration Rules and Ganga Ram Matu Ram for similar offence in the other case. Both the cases came up for hearing before Sri D.P. Srivastava, Additional Sub-Divisional Magistrate, Malihabad at Lucknow though on different dates.
Relying in both the cases on a decision of the Kerala High Court reported in City Corporation of Trivandrum v. Arunachalam Reddiar, AIR 1960 Kerala 356, the Magistrate held that there was no proper compliance of Clause (a) of Sub-section (1) of Section 11 of the Prevention of Food Adulteration, Act (to be referred to hereafter as the Act). The accused were, therefore, acquitted in both the cases and the Nagar Mahapalika has, consequently, come up to this Court in the two appeals.
2. The relevant portion of Section 11 of the Act reads:
'11(1) When a food inspector takes a sample of food for analysis, he shall - (a) give notice in writing then and there of his intention to have it so analysed to the person from whom he has taken the samples.'
3. Clause (a) aforesaid clearly contemplates that the Food Inspector shall give a notice in writing of his intention to have the sample analysed to the person from whom the has taken the sample.
3a. Rule 12 of the Prevention of Food Adulteration Rules also makes the same provision. It reads :--
'12. Where a food inspector takes a sample of an article of food for the purpose of analysis, he shall intimate such purpose in writing in Form VI to the person from whom he takes the sample.'
4. The only additional provision made in this rule is that the notice under Clause (a) of Section 11(1) of the Act shall be given in Form VI.
5. The three requisites, therefore, are:
1. The notice must be in writing,
2. It must intimate the intention of having the sample analysed, and
3. It must be given to the person from whom the sample has been taken.
If these three requirements are satisfied, the law does not require any further conditions to be satisfied.
6. There is no denying the fact that the notice in Form VI was given in both the cases. The only defect pointed out is that while the notices were actually handed over to the persons, who sold ghee to the Food Inspector, they were in fact addressed to the proprietors of the two shops. It was on this account that it was urged that the notices cannot be said to have been given to the person from whom the Food Inspector had taken the sample.
7. The Kerala case does support the view taken by the Magistrate. In the case before the Kerala High Court the first accused was the proprietor of the shop while the sample oil was sold by the second accused. Notice was addressed to the first accused but was handed over to the second accused, Sankaran, C.J., who delivered the judgment of the Division Bench, observed:--
'In such circumstances the notice requited bySection 11 should have been given to both theaccused. The only notice produced in this caseis Ext. P-2 and it is addressed to the first accused.But it was not served on him. This notice is seento have been served on the second accused. Suchservice cannot be accepted as service of notice onthe first accused. The acceptance by the secondaccused of a notice addressed to the first accused,cannot also be said to be service of the requirednotice on the second accused. The failure to issuenotice as required by Section 11 is also a vital defect which has vitiated the prosecution in thiscase.
8. Two points have thus been decided in this case:
1. that a notice under Clause (i) of Section 11 of the Act has to be given not only to the person from whom the sample was taken by the Food Inspector, but also to be proprietor of the firm, and
2. that notice which is addressed to the proprietor of the firm cannot be deemed to be a notice to the person from whom the sample was taken, even though the notice may have been served on him.
9. We will take the, second point first.
9a. Clause (a) of Section 11(1) merely requires that notice shall be given to the person from whom the Food Inspector has taken the sample. When the notice is actually handed over to him and even his acknowledgment obtained on the counter-foil thereof, it cannot, in our view, be said that notice has not been given to the person from whom the sample was taken merely because the name of the proprietor is mentioned at the top of the same. It is the substance of the notice which, in Our opinion, is important. The notice should clearly indicate the intention of the Food Inspector to have the sample analysed. That is also what is required by Rule 12. The notice that was given in either of the two cases was a notice in Form VI and clearly mentions that the samples were taken from the particular shops through the persons, whose names appear as such, to have the sameanalysed by the public analyst. Even though the name of such person may not have been mentioned at the top the body of the notice clearly specifies that the sample was taken from or through him and when even endorsement about the receipt of that notice was obtained from the particular salesman, one can easily infer that he had notice of the fact that the sample which he had sold to the Food Inspector was intended to be sent for analysis by the public analyst.
10. Even otherwise the provisions of Clause (a) of Section 11(1) of the Act have been literally complied with. The notice was in fact given and to the person who sold the sample.
11. In England Section 14 of the Sale of Food and Drugs Act, 1875, and Section 18 of the Food and Drugs (Adulteration) Act of 1928, which replaced the Act of 1875, made more or less the same provision as the one under Clause (a) of Section 11(1) in India. That section is:
'The person purchasing any article with the intention of submitting the same to analysis shall, after the purchase shall have been completed, forthwith notify to the seller or his agent selling the article his intention to have the same analysed by the public analyst and shall divide the article into three parts to be then and there separated, and each part to be marked and sealed or fastened up in such manner as its nature will permit and shall deliver one of the parts to the seller or his agent.'
12. The provision made under this section as to the person to whom notice was to be given is substantially different from the one in India. There the notice may be given either to the seller or his agent selling the article, but so far as the intention behind the giving of the notice is concerned, the provision is the same. It was held in Wheeker v. Webb (1887) 51 JP 661):
'The person buying the articles is bound by the statute to notify to the seller his intention to have the article analysed. But no particular form of words is required, nor even any words at all. What is necessary in that the seller must know that the samples are to be taken for the purpose of analysis, so that he may see the samples are fairly taken.'
13. Even Clause (a) of Section 11(1) of the Act in India does not require the notice being addressed to a particular person. It does not describe whether the notice is to be addressed to the proprietor of the firm or the manager or the salesman. All what it required is that a notice shall be given to the person from whom the sample has been purchased and to our mind, therefore, the provisions of the law were fully complied with when notices which were addressed to the proprietors were actually handed over to the persons from whom the samples were purchased.
14. We are also unable to follow the other view taken in the Kerala case that notice should also be given to the proprietor of the shop. Clause (a) of Section 11(1) of the Act requires notice being given only to the person from whom sample is taken by the Food Inspector. We are supported in this view by Gopal Das v. State (1961 All LJ,186 in which exactly the same view was taken by Desai, J. (as he then was). We, therefore, hold that there was due compliance of Clause (a) of Section 11(1) of the Act when notices were served by the Food Inspector on the persons from whom the samples were taken and that no second notice was required to be given to the proprietors of the two shops.
15. The only other point which arises for decision in these two appeals is whether the samples of ghee taken by the Food Inspector were found to he adulterated within the meaning of Clause (i) of Section 2 of the Act. In this criminal appeal 450 of 1961, the public analyst reported that the sample contained a small proportion of fat or oil foreign to pure ghee and that this finding was arrived at after making due allowance for all incidental and unavoidable admixture in the sample. The ghee purchased by the Food Inspector was thus clearly adulterated in this case and both the respondents Afaq Husain, who is the owner of the shop and Sarfaraz Husain who was the salesman, were liable to be convicted under Section 7 read with Section 16(1)(a) of the Act.
16. In criminal appeal No. 547 of 1961 the sample was found to contain 2.6 per cent of free fatty acids over and above the maximum permissible limit of 3 per cent. Even this sample of ghee was, therefore, adulterated.
17. It was contended on behalf of the respondents that the sample of ghee was taken in this case on 1st October, 1958, and sent to the public analyst on 3rd October, but tested by him on 3rd December and relying upon an unreported decision of this Court in the Municipal Board v. Hanuman Prasad, (Criminal appeal No. 889 of 1959 decided by V.D. Bhargava, J. on 27-4-1960 (All)), it was urged that the excess acidity may have been found on account of the chemical reactions which may have taken place in the course of these two months. Bhargava, J. has quoted at length in his judgment from a book 'Butter-fat (ghee)' by N.N. Godbole and Sadgopal, second (1939) edition, published by the Department of Chemistry, Banaras Hindu University, Banaras. The book refers to certain experiments which were carried out in the University regarding the effect of light, air and mature separately and conjointly on samples of ghee, which were otherwise free from acid consents. The samples of ghee were kept for 92 or 93 days under different conditions and the change in acid contents noted. These experiments and the results obtained were:
(1) The fat was hermeticallysealed in a thoroughly sterilised colourless glass tube freed from all airand moisture and kept exposed to diffused light. Free from air and moisture,exposed only to light.
No increase in the acid con-tents,
(2) The fat was kept in asterilised porcelain dish placed in a vacuum desiccator containing water, Thelatter was evacuated thoroughly, covered with black paper wrapped in a blackpiece of cloth, and was kept in a dark almirah. The sample was free fromlight and air. The effect of moisture watched.
Acid contents found to theextent of 8.9 per cent.
(3) The fat was kept in asterilised porcelain dish placed in a desiccator, containing fused calcium chloride,covered with a black paper and wrapped in a black piece of doth. Thepercelain dish not evacuated. There was no moisture and no light. Effect ofair watched.
No increase in acid contents.
(4) The fat was kept in adessicator containing water and exposed to diffused light. Effect of airmoisture and light watched.
Acid contents found to the15.1 per cent.
18. It will thug be seen that even according: to these observations, air and light have no apparent effect on the acid contents of ghee. Only that moisture affects the acid contents, and this effect is enhanced if the ghee is also at the same time exposed to light and air.
19. In the case of the sample which was taken from the shop of Durga Prasad Ganga Ram was bottled and sealed and there was, therefore, no question of any moisture having any effect upon it. In Cri Appeal No. 889 of 1959, D/- 27-4-1960 (All) (supra), there was three per cent moisture in the sample taken in that case and it was observed on the basis of that data that that moisture would certainly start its chemical action, and that if the bottle was not kept in dark, the chemical action may be accelerated. The report of the public analyst in the case before us does not indicate the extent of moisture in the sample, but the report does say that it had moisture within prescribed limits. Item A. 11.14 of Appendix B of the prevention of Food Adulteration Rules prescribe the maximum limit of moisture in ghee to be 3 per cent. It would follow, therefore, that in the particular sample taken in this case, moisture was not more than 3 per cent and when this percentage of moisture is permitted in ghee, it follows that it is believed that this small quantity of moisture does not lead to any chemical reaction.
In any case, if the respondents believed that even this small quantity of moisture may have led to some chemical reaction, resulting in increase in acidity to the extent mentioned by the public analyst in the course of two months, it was for them to make a request to the Court to summon the public analyst so as to give them opportunity for cross examining him on this point. We are not prepared for hold, in the absence of any material on record, that this small quantity of moisture would lead to such chemical reactions as may result in increase of acid contents from the maximum permissible limit of 3 per cent to 5.6 per cent. Even the two respondents in appeal No. 547 of 1961 were thus liable to be convicted under Section 7 read with Section 16(1)(a) of the Act.
20. Both the appeals are, therefore, allowed. In this appeal Afaq Husain and Sarfaraz Hussain are convicted under Section 7 read with Section 16 of the Prevention of food Adulteration Act, XXXVII of 1954, and fined Rs. 50/- (fifty) each. In case of default in the payment of fine, they shall undergo one month's simple imprisonment each.
21. In criminal appeal no. 547 of 1961, Ganga Ram and Matu Ram are convicted under the same provision and fined Rs. 50/- each, In case of default, they will undergo one month's simple imprisonment each.