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Manindra Nath Banerjee And Another Accused v. Jyotish Chandra Dutta Opposite Party.
Factual and Procedural Background
Two petitioners, Manindra Nath Banerjee (petitioner No. 1, shop assistant) and Dinanath Bhakat (petitioner No. 2, shop owner), were convicted under Section 6(1)(c) of the Bengal Pood Adulteration Act and sentenced under Section 21 to pay a fine of Rs. 150 each, with default simple imprisonment for one month. The charge was that adulterated ghee was stored for sale in a shop in Katwa bazar (within the municipal limits of Katwa).
Factual findings in the trial record include: on 14 September 1935 the Sanitary Inspector of Katwa Municipality, Jotish Chandra Dutt, with members of the Food Adulteration Committee, took samples of ghee and mustard oil from five shops (not including the petitioners' shop). On that same day the manager of the petitioners' shop sent a sample of ghee to the Municipal Office for analysis by the public analyst. On 15 September 1935 the Sanitary Inspector returned to the petitioners' shop, asked petitioner No. 1 to supply ghee and mustard oil, and (after hesitation) petitioner No. 1 supplied the articles, divided the ghee into three sealed parts, tendered the price (which was refused), handed sealed packets to the Inspector, and one part was sent to the public analyst. The public analyst's certificate stated the ghee was grossly adulterated; he was not called as a witness.
Procedurally, the petitioners obtained a Rule (judicial review/redress) before the court seeking relief from their convictions/sentences; the court heard two principal points of law and issued a decision described below.
Legal Issues Presented
- Whether the Sanitary Inspector of the Katwa Municipality was a person authorized under Section 10 of the Act such that he had authority to take samples under the municipal authorization (i.e., whether he acted as an authorized official or as a private purchaser).
- Whether the Sanitary Inspector complied with the statutory requirement (under Section 11 of the Indian Act, corresponding to Section 14 of the English Act) to "forthwith notify" the seller or his agent, at the time of purchase, of his intention to have the article analysed by the public analyst—failure of which, it was contended, would make the public analyst's certificate inadmissible in evidence under the Act.
Arguments of the Parties
Petitioners' Arguments
- Petitioner No. 2 had no concern with (i.e., was not responsible for) the shop where the ghee was stored (a factual contention that the trial court rejected).
- The ghee from which the sample was taken had not been "stocked for sale" in the shop: the shop was described as an aratdari business where beparis (merchants) deposited goods to be sold by the shop on commission; the specific arrangement alleged was that a Marwari had deposited 52 tins of ghee on condition that a sample would be sent for analysis and, depending on the analyst's report within five weeks, the goods would either be sold or returned—thus, the defence asserted the ghee was merely in deposit and not stocked for sale.
The opinion does not contain a detailed account of the prosecution's separate legal arguments beyond reliance on the public analyst's report and the trial findings described above.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| 62 Cal 3741 | Authority concerning whether a municipal sanitary inspector is to be treated as an authorized official under the relevant sections of the Act or otherwise; addresses the presumption of authorization for official acts. | The court followed this Division Bench decision for the point in question and relied on it in rejecting the petitioners' contention that the Sanitary Inspector was necessarily an authorized official; the Inspector was treated for the purposes of the case as a private purchaser acting under Section 9. |
| 3 Ex. D 176 (Exchequer Division) | Holds that the purchaser's notification to the seller of the intention to submit an article for analysis is a condition precedent to prosecution under the statute (Kelly, C.B.). | The court reviewed the decision as part of English authority on the statutory requirement, noted the holding that notification can be a condition precedent, and considered later authorities that refined or distinguished the case. |
| (1912) 1 KB 578 | Recent English case affirming the principle that the purchaser's notification of intention to have a sample analysed is essential to a prosecution under the Act. | The court cited this as part of the English line of authorities supporting the underlying purpose of the notification requirement (to protect sellers) and as persuasive background when interpreting the Indian statutory provision. |
| 51 JP 661 | Cited for the proposition (as stated by Cave, J.) that no particular form of words is required for the notification; what is necessary is that the seller must know that the samples are to be taken for analysis. | The court relied on this formulation to adopt the position that a declaration in particular words is not required—only that the seller must be made aware at the time that the article will be sent for analysis. |
| 15 Halsbury's Statutes / Halsbury (reference: 15 Hals. S. 235, Hailsham Edn.) | General statement of the accepted position in England as to the notification requirement and its purposes (seller's opportunity to ensure fair taking, preservation, and testing of samples). | The court referred to this authority to show that the English enunciation (that seller must know, but words need not be formulaic) has been consistently followed and to support its interpretation of the Indian statutory provision. |
Court's Reasoning and Analysis
The court proceeded in two analytical stages corresponding to the two principal contentions raised by the petitioners.
1. Authority of the Sanitary Inspector (Section 10 / Notification under local government)
The court examined the Local Government notification dated 14 July 1930 (published 7 August 1930) which empowered "The Health Officer, or where specially authorized by the local authority ... the Sanitary Inspector or the Food Inspector in the employ of a Municipality or District Board" to exercise the powers and perform the duties mentioned in Sections 10 and 12 of the Act. The record contained no evidence that the Katwa Municipality's Commissioners had "specially authorized" their Sanitary Inspector to exercise those powers for Katwa. The Sessions Judge had relied on a presumption of regularity; this court rejected that basis for presuming authorization.
Because no special authorization was proved, the court concluded that, for the present case, the Sanitary Inspector was to be regarded as acting in the capacity of a private purchaser (i.e., a private person) who purchased samples and sent them for analysis—an act which such a private person may perform under Section 9 of the Act. The court expressly followed the Division Bench decision in 62 Cal 3741 on this point and thus rejected the petitioners' first contention that the Inspector had no authority to take samples.
2. Requirement of Notification to the Seller (Section 11 / English analogues Section 14)
The court treated the question whether the Sanitary Inspector "forthwith" notified petitioner No. 1 of his intention to have the sample analysed. The court surveyed English authorities under the Sale of Food and Drugs Act 1875 (and the later Food and Drugs (Adulteration) Act 1928) because those Acts are prototypes of the Indian Act and contain corresponding provisions (the court mapped sections across statutes).
The historical English cases show two related propositions: (a) the notification of the buyer's intention to have an article analysed serves protective purposes for the seller and has been treated as essential to a prosecution in many English authorities (Kelly, C.B. in the Exchequer Division; later cases such as (1912) 1 KB 578); (b) later English authority (Mathew, J. and Cave, J., and other authorities cited) clarified that the statute does not require a particular formula of words—what matters is that the seller must know at the time of the purchase that the sample is to be sent for analysis so that the seller can ensure fairness, preserve the sample, and (if desired) have it examined.
Applying those principles, the court held that the Indian provision (Section 11) likewise does not mandate a literal declaration in fixed words; instead, the essential requirement is that the seller must be aware at the time of the purchase that the article will be sent for analysis. The court rejected an interpretation that would require a specific verbal formula in every case.
Turning to the facts, the court found that the petitioners (specifically petitioner No. 1) did know that the ghee taken would be analysed, because on 14 September—the day before the Inspector obtained the sample from the shop—the manager of the petitioners' shop had applied to the Municipality to have a sample of ghee analysed and had sent a sample with a request that it be analysed by the public analyst and had paid the fees. The court considered this circumstance to put the matter "beyond doubt" and to permit the necessary inference that petitioner No. 1 knew on 15 September that the samples were being taken for analysis. Consequently, the court held that the notification requirement (in substance) was satisfied.
Holding and Implications
Core Ruling: RULE DISCHARGED.
The court discharged the petitioners' Rule. In other words, the petitioners' application seeking relief from the conviction and sentence was dismissed by the court's order.
Implications:
- Direct effect on the parties: the petitioners' Rule was discharged; the trial convictions and sentences stand as against the petitioners (the opinion records the original convictions and sentences and then discharges the Rule seeking relief).
- Legal clarification made by the court: the court adopted the view, following English authorities, that the statutory requirement to "forthwith notify" the seller of the buyer's intention to have an article analysed does not require particular formulaic words; what is essential is that the seller know at the time of the purchase that the article would be submitted for analysis, so that the seller has opportunity to protect his interests (see the court's discussion of English precedents and application to the facts before it).
- On the question whether a municipal Sanitary Inspector had been shown to be "authorized" under Sections 10 and 12, the court required proof of specific authorization by the municipal authority and did not accept a presumption of authorization based on regularity; in this case the Inspector was treated as a private purchaser under Section 9 and the court followed the Division Bench decision in 62 Cal 3741 on that issue.
- The court's decision relied substantially on existing English decisions and a prior Division Bench decision; it applied and explained these authorities to the facts at hand rather than announcing a novel test beyond the articulated principle that the seller must know of the intention to analyse the sample.
Disposition: "Rule discharged." (Henderson, J. agreed.)
R.C Mitter, J.:— This Rule has been obtained by the two petitioners before us who have been convicted of an offence punishable under Section 6, sub-Section 1, Clause (c) of the Bengal Pood Adulteration Act, and each of them sentenced under S. 21 of the said Act to pay a fine of Rs. 150, in default to suffer simple imprisonment for one month. The charge against the petitioners is that they stored for sale adulterated ghee in a shop situate in Katwa bazar within the Municipal limits of Katwa. The finding is that petitioner 2, Dinanath Bhakat, is the owner of the said shop and petitioner 1, Manindra Nath Banerjee, is his shop assistant. The facts which have been established are that on 14th September 1935 Jotish Chandra Dutt, the complainant, who is the Sanitary Inspector of the Katwa Municipality accompanied by some members of the Food Adulteration Committee of the said Municipality took samples of ghee and mustard oil from five shops of the Katwa bazar. No sample was taken from the shop of petitioner 2 on that day. After these samples had been taken, a sample of ghee (we are not concerned with the sample of mustard oil) was sent by the Manager of the shop of petitioner 2 to the Municipal office for analysis by the public analyst. This fact was made one of the grounds for defence, but as we will indicate hereafter it has got a material bearing on one of the points raised by the petitioners before us, and furnishes an answer to the prosecution. On the next day, that is, on 15th September 1935, the said Sanitary Inspector of the Municipality accompanied by three members of the Food Adulteration Committee went to the shop in question and the Sanitary Inspector asked the petitioner 1 to supply him with ghee and mustard oil. After some hesitation petitioner 1 supplied him with ghee and mustard oil. He divided the ghee in three parts as also the oil and sealed them. He then tendered the price which was refused. He then gave to the said petitioner a sealed packet of each of the said articles and sent one of each to the public analyst. The public analyst in the form given in the schedule to the Act gave a certificate stating that the ghee sent to him was grossly adulterated. On the receipt of his report with the sanction of the Municipal Commissioner the prosecution was started. The public analyst was not examined as a witness. There is no direct evidence that the Sanitary Inspector forthwith after obtaining the articles in express terms notified petitioner 1 his intention to have the articles analysed by the public analyst.
2. From the written statement that was filed by petitioner 1, from the trend of cross-examination of the prosecution witnesses and the evidence on the record, it appears that the specific defence was of a two-fold character, namely, (1) that petitioner 2 had no concern with the shop, and (2) that the ghee from which sample was taken by the complainant had not then been stocked for sale in the shop. The first defence is concluded by finding of fact. The second defence is as follows: The shop belonged to the Bhakat Babus. It is an Aratdari shop. The Beparis sent goods which they themselves sell, the Bhakats taking commission only. A Marwari sent to the said shop 52 tins of ghee. The Manager of the shop allowed him to store them there on condition that samples would be taken and sent for analysis by the public analyst and if his report was favourable, the goods would be sold from the shop on aratdari system. If his report was unfavourable or if the result of the analysis be not known within five weeks, the ghee is to be returned to the Marwari, but in the meantime it was to remain only in deposit in the Arat. It is said that in pursuance of this arrangement a sample of ghee was sent by the Manager of the shop for analysis to the Municipal Office on 14th September 1935. The defence in substance was that the ghee in question had not been stocked for sale.
3. This defence has been rightly overruled on the finding that the sample sent by the Manager of the shop to the Municipality on 14th September was sent after samples had been taken by the Sanitary Officer from other shops on 14th September and was sent for the purposes of creating evidence in anticipation that samples from the shop in question would be taken later on for being sent for analysis by the public analyst for starting prosecution, an anticipation which has proved to be correct.
4. Before us two substantial points have been taken by the petitioners' advocate, namely, (1) the Sanitary Inspector of the Katwa Municipality was not a person authorized under S. 10 of the Act, and had accordingly no authority to take the samples, (2) that the said officer did not comply with S. 11 inasmuch as he did not state forthwith after his purchase his intention to have the sample examined by the public analyst. It is said by the learned advocate that this omission does not make the certificate of the public analyst evidence of the facts stated therein under S. 14(2) and his report cannot go in as he was not examined as a witness. Under S. 20, Cl. (e), the Local Government issued a notification, dated 14th July 1930. The said notification was published in the Calcutta Gazette on 7th August 1930 at p. 1205. It runs as follows:—
The Health Officer, or where specially authorized by the local authority, which is hereby empowered in this behalf, the Sanitary Inspector or the Food Inspector in the employ of a Municipality or District Board, shall exercise the powers and perform the duties mentioned in Ss. 10 and 12 of the Act. In any Municipality which has no Sanitary Officer, such function shall be performed by the Sanitary Officers of the District Board of the district concerned with the consent of the District Board.
5. There is no evidence that the Commissioners of the Katwa Municipality specially authorized their Sanitary Inspector to exercise the powers or perform the duties mentioned in Ss. 10 and 12. We do not agree with the learned Sessions Judge in the view that the presumption in favour of official acts being regularly done would enable the Court to presume that the Sanitary Officer had been authorized under Ss. 10 and 12. The said Inspector must accordingly be taken for this case to be a private person who purchased samples and sent them for analysis by the public analyst. Such a private person can do so under S. 9 of the Act. We accordingly do not accept the first contention as sound and follow the judgment of a Division Bench on this point in 62 Cal 3741. The second point, however, requires careful consideration. On this point there is no decided case here, so far as we are aware. But there are cases decided in England on the Sale of Food and Drugs Act, 1875 (38 & 39 Vict., Ch. 63), now replaced by the Food and Drugs (Adulteration) Act of 1928 (18 & 19 Geo. V, Ch. 31). The former Act is the prototype of the Indian Act. It is unnecessary to examine both the said English Acts in detail. Sections 14 and 21 of the former Act correspond to Sections 18 and 28(2) of the latter Act. We propose to examine the Act of 1875 and to examine the decisions passed thereon which have a material bearing upon this question before us. S. 10 provides for the appointment of public analysts. S. 13 authorizes certain persons to procure samples and submit the same for analysis by the public analyst. S. 18 provides that the certificate of the public analyst shall be in the form set out in the schedule to the Act or to the like effect. S. 21 provides that the said certificate shall be sufficient evidence of the facts stated therein without the public analyst being called as a witness, option, however, being given to the defendant to call him as a witness. S. 14 of the Act as amended by S. 13 of 62 & 63 Vict., Ch. 51 is as follows:
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.
6. Three years after this Act was passed a case was decided by the Exchequer Division in 3 Ex. D 1762. A person mentioned in S. 13, namely a police constable under the direction of an Inspector of Weights and Measures, went into an inn and purchased gin from a bar maid. He paid the price and then told her that he purchased the gin for the purpose of analysis. He omitted to add the words “by the public analyst.” He then said that he would divide the articles but omitted to say “into three parts” and give her a portion which the bar maid said she did not want. The Act as it stood then only made division into three parts compulsory if the seller required such division. The amendment of 1899 changed this part of S. 14 but that is not material for this pase. The article was sent to the public analyst who analysed it and gave a certificate stating that it was adulterated. The public analyst was not examined as a witness. Kelly, C.B, held that to sustain the case the complainant must prove that the purchaser of the article satisfied the conditions of S. 14, that he after his purchase had forthwith notified to the seller or his agent selling the article his intention to have the same analysed by the public analyst. He stated thus:
Mr. Jelf in effect asks us to strike those words out. When we look at S. 21, we see that the production of the certificate of the analyst is to be sufficient evidence of the facts therein stated, unless the defendant requires the analyst to be called. In order to see how the certificate is to be obtained, we must look at the preceding sections. This is a penal Act and it would lead to great injustice if this provision in S. 14 which is intended for the benefit of the seller might be disregarded, where the person selling is, as in the present case, an ignorant bar maid. On the ground of convenience as well as by the very terms of the Statute, I think the notification required by S. 14 is a condition precedent to a prosecution under the Act.
7. In England the position has all along been maintained that the notification of the intention by the buyer of the article to have the same examined by a public analyst is essential for sustaining a prosecution. There are many cases on the point, one of the recent ones in which that principle was accepted is the case in (1912) 1 KB 5783 at pp. 584 and 585. The principle underlying the said requirement of the Statute is to give an opportunity to the seller to see that the sample is fairly taken, to apprise the seller that the sample left with him may have to be preserved by him for future comparison and to give an opportunity of having it analysed at his instance. Section 11 of the Indian Act and Section 14 of the English Act of 1875 and Section 18 of the English Act of 1928, however, use the words “shall forthwith notify to the seller or his agent selling the article his intention to have the same analysed.” It does not speak of any declaration to be made at the time by the buyer and the principle underlying the said section being what we have stated above, we think that a declaration is not necessary. All that is required is that the seller must know at the time of the purchase that the article purchased would be sent by the buyer to be analysed by the public analyst. S. 12, Cl. (4), brought to our notice by Mr. Bhattacharjee, does not incline us to hold that the notification of intention mentioned in S. 11 is not essential to the prosecution. That section, namely S. 12, deals with inspection by authorized persons of food at the manufactory, in the course of transit or hawked about and with seizure. The section follows the principle of the English decisions that no notification of intention is necessary when food is seized in the course of the transit, etc. The question we are considering arose in 1887 on a reference being made to the High Court of Judicature in England by the Justice of the Peace of the Upper Division of Lathe of Sutton-Hone. There an Inspector of Drugs appointed under the Sale of Food and Drugs Act of 1875 purchased brandy, rum, whiskey and gin from the appellant. He divided them into three parts, sent them for analysis by the public analyst who granted a certificate that they were adulterated. Just after the purchase the Inspector stated that he intended to have the articles analysed by the “county analyst” instead of by the “public analyst.” Mathew, J. stated thus in the course of the argument:
You say “public” analyst must be used either in speech or writing. Surely this is a superstitious adherence to form. The statute says that the constable is to notify to the seller his intention to have the article analysed by the public analyst. He need not say anything if the seller knew all about what was intended.
8. Cave, J. in his judgment distinguished 3 Ex. D 176. He said thus:
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: 51 JP 6614
9. This enunciation of the law has been followed in England since then (see 15 Hals. S. 235, pp. 147-148, Hailsham Edn.). In the case before us we have no doubt that petitioner No. 1 knew when the ghee was taken by the Sanitary Inspector from his shop that it would be analysed by the public analyst. The occurrence of the 14th September and the application to the Municipality made by the Manager of the shop in question on the 14th September to have a sample of ghee sent to the Municipal Office on that date with a request that it may be analysed by a public analyst, with the fees of the said analyst paid, put the matter beyond doubt and from these facts the necessary inference follows that the petitioner 1 who gave the ghee to the complainant on the next day knew at the time that the samples were being taken from him for the purpose of analysis by the public analyst. We accordingly discharge this Rule.
Henderson, J.:— I agree.
M.D/V.V
10. Rule discharged.
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