Anna Chandy, J.
1. This appeal under Section 417(3) by the complainant is against an order of acquittal.
2 The complainant is the Food Inspector of the Quilon Municipality. The charge against the accused was for offences punishable under Sections 7 and 16 of the Prevention of Food Adulteration Act 37 of 1954. The complainant's case was that the second accused in the case sold to him adulterated milk which belonged to the first accused and thus both the accused had committed the offence. The second accused was discharged on the first day of hearing on the mistaken impression that servant is not liable and the first accused subsequently acquitted on the ground that notice under Section 11 of the Act has not been served on him. No evidence was recorded. The acquittal of the first accused alone is challenged in this appeal.
3. Sree Eradi contends on behalf of the appellant that the scope of Section 11(1)(a) has been misunderstood by the court. According to the learned counsel the notice required under Section 11 has to be given only to the person from whom the sample was taken. We feel that the contention should prevail.
4. There is nothing in the section itself to warrant the inference that notice should be given to the master also when sample of food is taken from the servant who sold on his behalf. Sections 10 and 11 read together clearly indicate that notice need be given only to the persons mentioned in Section 10. Section 10 empowers the Food Inspector to take sample of any article of food from
'(i) any person selling such article; (ii) any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee, and (iii) a consignee after delivery of any such article to him.'
Section 11(1)(a) of the Act prescribes that
'When a Food Inspector taken a sample of food for analysis he shall give notice in writing then and there of his intention to have it soanalysed to the person from whom he has taken the sample.'
5. The expression 'then and there' means that notice must be given on the spot to the per-son from whose hands the sample was actually taken which in turn clearly indicates that the notice is not meant to be served subsequently on the absentee owner. Rule No. 12 (Central Rules) which deals with the form of intimation of purpose of taking sample provides that
'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 has taken the sample.'
The rule does not contemplate notice being given to the owner or seller in cases where the sample is taken from a servant or agent. That the notice need not be given to more persons than one is also indicated by. Section 11(1)(b) and (c) which prescribes the sample to be divided into three parts (only) one of which should be delivered 'to the person from whom the sample has been taken,' that is, to the person to whom notice is prescribed under Section 11(1)(a), the other two parts being intended to be sent to the Public Analyst and to be retained for production in case legal proceedings are taken for analysis by the Director of the Central Food Laboratory.
6. A comparison with the corresponding provision in the English Food and Drugs Act, 1938, also leads to the same conclusion. Section 70 of that Act prescribes:
'A person purchasing a sample of any food or drug with the intention of submitting it to be analysed by a Public Analyst .....shall, after the purchase has been completed or the sample hag been taken, forthwith inform the seller or his agent who sold the sample, or, as the case may be, the occupier of the premises or the person for the time being in charge thereof, of his intention to have the sample analysed by the Public Analyst, and shall then and there divide into three parts, .....'
Here even though the expression 'seller' is used, it is expressly prescribed that a notice to the agent who sold the sample or to the person for the time being in charge of the premises is all that is contemplated. In Our statute the same idea is expressed in a much simpler language by prescribing that notice should be given to 'the person from whom the sample was taken' avoiding altogether the use of the expression 'seller'. We hold that notice under Section 11(1)(a) need not be given to the master when the person who sold the sample is the servant.
7. The passing observation contained in the judgment of this Court reported in City Corporation of Trivandrum v. Arunachalam Reddiar, 1960 Ker LT 515: (AIR 1960 Ker 356) in so far as it relates to the scope of Section 11(1)(a) will not be of much help to the accused as that decision turned On the question of want of a valid sanction. Further that case is clearly distinguishable on the facts as no proper notice was given there to the servant from whom the sample was taken. Hence the appeal is allowed and the caseis sent back to the lower court for fresh disposalaccording to the law and in the light of the observations made above.