NAGAR MAHAPALIKA Vs. AFAQ HUSAIN ALTAF HUSAIN

JUDGEMENT

(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 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 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:

(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 :-