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Nagar Mahapalika Of ... v. Afaq Husain And Another
Structured Summary of the Court Opinion
Factual and Procedural Background
The two appeals (including Criminal Appeal No. 547 of 1961) were filed by the Nagar Mahapalika of Lucknow and were heard together because they raised the same legal question. A Food Inspector purchased samples of ghee from two shops: one sample at Afaq Husain's shop (date given in the opinion as 13th December, 1957) and the other at the shop of Durga Prasad Ganga Ram (the opinion initially records the date as 1st October, 1951). In each case the ghee was sold to the Food Inspector by a shop employee — at Afaq Husain's shop by his salesman Sarfaraz Husain, and at Durga Prasad Ganga Ram's shop by Matu Ram.
In both matters samples were sealed in three separate bottles; one sealed bottle was handed to the person from whom the ghee was purchased. The Food Inspector prepared and issued notices in Form VI under clause (a) of sub-section (1) of Section 11 of the Prevention of Food Adulteration Act, 1954. In each instance the notice was addressed to the proprietor (Afaq Husain in one case; the firm Durga Prasad Ganga Ram in the other) but was physically handed to the salesmen (Sarfaraz Husain and Matu Ram respectively), who endorsed receipt on the duplicate copy.
The samples were sent to the public analyst. The public analyst found that the sample from Afaq Husain's shop contained a small proportion of fat or oil foreign to pure ghee (after allowance for incidental/unavoidable admixture). The sample from the other shop was reported to contain 2.6% free fatty acids over and above the permissible limit of 3%. Prosecutions were launched under Section 7 read with Section 16 of the Prevention of Food Adulteration Act and rule 5 of the Rules (in one description) or under the same sections and rule references as detailed in the opinion.
At the trial level the Additional Sub-Divisional Magistrate, Malihabad, relied on a decision of the Kerala High Court (City Corporation of Trivandrum v. V.P.N. Arunachalam Reddiar, A.I.R. 1960 Kera. 356) to hold that the statutory notice requirement had not been properly complied with because the notices were addressed to proprietors but handed to salesmen; the accused were acquitted. The Nagar Mahapalika appealed to this Court against those acquittals.
Legal Issues Presented
- Whether clause (a) of sub-section (1) of Section 11 of the Prevention of Food Adulteration Act — and rule 12 (Form VI) of the Prevention of Food Adulteration Rules — require that the written notice of intention to have a sample analysed must be addressed specifically to the proprietor (or another specific person), or whether handing the Form VI to the person from whom the sample was actually taken (e.g., a salesman) satisfies the statutory requirement.
- Whether the ghee samples, as analysed by the public analyst, were adulterated within the meaning of the Act (including consideration of whether delay between sampling and analysis could have caused the excess acidity reported in one sample).
Arguments of the Parties
Respondents' Arguments
- Reliance on the Kerala High Court decision (City Corporation of Trivandrum v. V.P.N. Arunachalam Reddiar) that a notice addressed to the proprietor but delivered to the seller (salesman) does not constitute valid notice to the proprietor or to the seller, and that notice should have been given to both the proprietor and the person who sold the sample.
- In respect of the sample showing excess free fatty acids, the respondents contended that the sample was taken on 1st October (the opinion records the respondents' contention as the sample being taken on 1st October, 1958), but tested only two months later; relying on an unreported decision of this Court (Municipal Board v. Hanuman Prasad, Cr. A. No. 889 of 1959), they argued that chemical changes during that delay (influenced by moisture, light, air) could have caused the higher acidity and thus the reported adulteration might not reflect the condition at the time of sale.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| City Corporation of Trivandrum v. V.P.N. Arunachalam Reddiar, A.I.R. 1960 Kera. 356 | Held that a notice addressed to the proprietor but served on the seller is not effective notice to the proprietor, and that notice in such circumstances should have been given to both the proprietor and the person who sold the sample. | The Court considered and rejected the Kerala decision's broader holding that notice must also be given to the proprietor. The Court accepted the Kerala case only on the point that a notice addressed to one person and not served on that person cannot be treated as served on that person. |
| Wheeker v. Webb, 1887, 51 J.P. 661 | Principle that no particular form of words is necessary; what matters is that the seller knows the samples are to be taken for analysis so that the seller can ensure fair taking of samples. | The Court relied on this authority to support the view that substance matters over form: the seller must be aware that samples are to be analysed; there is no requirement that the notice be addressed in a particular form to a named proprietor. |
| Gopal Das v. State, 1961 A.L.J. 186 | Support for the position that notice under clause (a) of Sec. 11(1) need only be given to the person from whom the sample is taken, and no separate notice to the proprietor is required. | The Court relied on this case as supporting authority for its conclusion that when the notice was actually served on the person from whom the sample was taken, statutory compliance was achieved and no second notice to the proprietor was necessary. |
| Municipal Board v. Hanuman Prasad, Cr. A. No. 889 of 1959 (unreported, decided 27-4-1960) | Addressed the effect of delay and sample storage conditions on acidity/moisture content (observed that moisture present in sample may initiate chemical changes increasing acidity, with light/dark storage affecting rate). | The Court reviewed this authority and the experimental data quoted in it, but distinguished the present case on the facts: the sample before the Court was sealed in a bottle and reported to have moisture within prescribed limits (maximum permissible 3%); the Court was not persuaded, on the record before it, that delay alone would account for the reported excess acidity. |
Court's Reasoning and Analysis
The Court proceeded in a structured manner:
-
Statutory requirements: The Court examined clause (a) of sub-section (1) of Section 11 of the Prevention of Food Adulteration Act which requires that when a food inspector takes a sample he "shall give notice in writing then and there of his intention to have it so analysed to the person from whom he has taken the sample." Rule 12 of the Rules requires the notice to be in Form VI. The Court distilled three requisites from these provisions:
- The notice must be in writing;
- It must intimate the intention to have the sample analysed; and
- It must be given to the person from whom the sample was taken.
- Substance over form: Addressing the Kerala decision, the Court held that handing the notice in Form VI to the person who actually sold the sample (and obtaining his endorsement on the duplicate) fulfilled clause (a)'s requirement even though the notice was headed with the proprietor's name. The Court emphasized that the substance of the notice—its clear indication of the Food Inspector's intention to have the sample analysed—is the critical point, not the precise name appearing at the top of the form.
- Reliance on comparative authorities: The Court noted English statutory provisions (Sale of Food and Drugs Act, 1875 and Food and Drugs (Adulteration) Act, 1928) and relied on Wheeker v. Webb to underline that the seller must be aware that the samples are to be analysed; there is no required form of words. The Court observed that the Indian provision does not prescribe to whom the notice must be addressed (proprietor, manager, or salesman), only that it must be given to the person from whom the sample was taken.
- Rejection of the broader Kerala holding: The Court rejected the Kerala High Court's broader holding that notice must also be given to the proprietor, and expressly relied on Gopal Das v. State as supportive authority for the narrower construction — that service on the person from whom the sample was taken suffices.
- On adulteration and delay: For the substantive question of adulteration, the Court accepted the public analyst's findings for both samples: in one, presence of fat or oil foreign to pure ghee; in the other, free fatty acids exceeding permissible limits. Concerning the respondents' contention that delay between sampling and testing could have caused the acidity increase, the Court reviewed experimental material quoted from Municipal Board v. Hanuman Prasad and summarized the experiments showing moisture (not light or air alone) as the principal factor increasing acidity. Because the sample in question was bottled and sealed and the public analyst's report stated moisture was within prescribed limits (Appendix B allows up to 3% moisture), the Court found no basis on the record to accept that the small permissible moisture could have caused the acidity to rise to the extent reported over two months. The Court also noted that if the respondents believed the analyst's delay produced the error, they could have asked the trial court to summon the public analyst for cross-examination — they did not do so. On that factual and evidentiary basis, the Court accepted the analyst's report as proof of adulteration.
Holding and Implications
Core Ruling: The appeals are allowed; the Court held that the statutory notice requirement in clause (a) of sub-section (1) of Section 11 of the Prevention of Food Adulteration Act was complied with when Form VI was handed to the person from whom the sample was taken (even though the printed form was addressed to the proprietor). The Court also held that the analyst's findings established adulteration in both samples.
Direct Disposition and Sentences:
- Afaq Husain and Sarfaraz Husain: Convicted under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, XXXVII of 1954; each fined Rs. 50; in default of payment each to undergo one month's simple imprisonment.
- Ganga Ram and Matu Ram (Cr. A. No. 547 of 1961): Convicted under the same provisions and each fined Rs. 50; in default each to undergo one month's simple imprisonment.
Broader Implications (as expressed in the opinion):
- The Court adopted an interpretation of section 11(1)(a) focused on practical compliance: notice given in writing, indicating intention to analyse, and delivered to the person from whom the sample was taken suffices — there is no additional statutory requirement to direct a separate notice to the proprietor.
- The decision distinguishes and does not follow the broader holding of the Kerala High Court in City Corporation of Trivandrum; it aligns instead with Gopal Das v. State and the practical principle reflected in Wheeker v. Webb that substance and actual notice to the seller/agent matters more than the name on the top of the form.
Note: All factual statements, statutory citations, case names, dates and numerical particulars in this summary are taken verbatim or paraphrased from the provided court opinion. No additional facts or inferences beyond the opinion text have been introduced.
S.D Singh, J.:— 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 Ganga Ram, on 1st October, 1951. At Afaq Husain'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 sub-Sec. (1) of Sec. 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 phials as 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 proportion 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 2.6 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 Sec. 7 read with Sec. 16 of the Prevention of Food Adulteration Act read with rule 5 of the Prevention of Food Adulteration Rules and Ganga Ram and 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. V.P.N Arunachalam Reddiar A.I.R 1960 Kera. 356., the Magistrate held that there was no proper compliance of Cl. (a) of sub-Sec. (1) of Sec. 11 of the Prevention of Food Adulteration Act (to be referred to hereafter as the Act). The accused were, there fore, 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 Sec. 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 sample;”
3. Cl. (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 he has taken the sample.
4. 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.”
5. The only additional provision made in this rule is that the notice under Cl. (a) of Sec. 11(1) of the Act shall be given in Form VI.
6. 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.
7. If these three requirements are satisfied, the law does not require any further conditions to be satisfied.
8. There is no denying the fad 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.
9. 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 required by Sec. 11 should have been given to both the accused. The only notice produced in this case is Ext. P. 2 and it is addressed to the first accused. But it was not served on him. This notice is seen to have been served on the second accused. Such service cannot be accepted as service of notice on the first accused. The acceptance by the second accused of a notice addressed to the first accused, cannot also be said to be service of the required notice on the second accused. The failure to issue notice as required by Sec. 11 is also a vital defect which has vitiated the prosecution in this case.”
10. Two points have thus been decided in this case:
(1) that a notice under Cl. (1) of Sec. 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 the 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.
11. We will take the second point first.
12. Cl. (1) of Sec. 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 acknowledgement 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 same analysed 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.
13. Even otherwise the provisions of Cl. (a) of Sec. 11(1) of the Act have been literally complied with. The notice was in fact given and to the person who sold the sample.
14. In England Sec. 14 of the Sale of Food and Drugs Act, 1875, and Sec. 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 Cl. (a) of Sec. 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”
15. 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 J.P 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 is 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 to be fairly taken.”
16. Even Cl. (a) of Sec. 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.
17. 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. Cl. (a) of Sec. 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 A.L.J 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 Cl. (a) of Sec. 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.
18. 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 be adulterated within the meaning of Cl. (i) of Sec. 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 Sec. 7 read with Sec. 16(1)(a) of the Act.
19. 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.
20. 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 Cr. A. No. 889 of 1959 decided on 27-4-1960., by V.D Bhargava, J., 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) edn. 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 moisture separately and conjointly on samples of ghee, which were otherwise free from acid contents. 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 hermetically sealed in a thoroughly sterilised colourless glass tube freed from all air and moisture and kept exposed to diffused light. Free from air and moisture exposed only to light. No increase in the acid contents. (2) The fat was kept in a sterilised porcelain dish placed in a vacuum dessicator containing Water. The latter was evacuated thoroughly, covered with black paper wrapped in a black piece of cloth, and was kept in a dark almirah. The sample was free from light and air. The effect of moisture watched. Acid contents found to the extent of 8.9 per cent. (3) The fat was kept in a sterilised porcelain dish placed in a dessicator, containing fused calcium chloride, covered with a black paper and wrapped in a black piece of cloth. The porcelain dish not evacuated. There was no moisture and no light. Effect of air Watched. No increase in acid contents. (4) The fat was kept in a dessicator containing water and exposed to diffused light. Effect of air, moisture and light watched. Acid contents found to the extent of 15.1 per cent.
21. It will thus be seen that even according to these observations, air and light have no apparent effect on the acid contents of ghee. Only the moisture affects the acid contents and this effect is enhanced, if the ghee is also at the same time exposed to light and air.
22. 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 Municipal Board v. Hanuman Prasad, there was three per cent moisture in the sample taken in that case and it was observed on the basis of that data 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 to hold, in the absence 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 Sec. 7 read with Sec. 16(1)(a) of the Act.
23. Both the appeals are, therefore, allowed. In this appeal Afaq Husain and Sarfaraz Husain are convicted under Sec. 7 read with Sec. 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.
24. 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.
Appeals allowed.
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