A. M. AHMADI, J. ( 1 ) THIS appeal by the original complainant is directed against the order of acquittal passed by the learned J. M. F. C. (Muni cipal) Baroda In Criminal case No. 7595/75 whereby he came to the conclusion that the prosecution had failed to prove the charge against the first respondent for the commission of an offence punishable under sec. 16 (1) (a) (i) read with sec. 7 (i) of the Prevention of Food Adul teration Act 1954 hereinafter called the Act. The relevant facts which have given rise to this appeal may be set out in brief as under: ( 2 ) THE first respondent original accused was carrying on business in groundnut oil and Vanaspati Ghee on Sidhnath road near Khanderav Market Baroda at the material point of time. The Food Inspector of the Baroda Municipal Corporation Shri Manubhai Maganbhai Pandya visited the shop of the first respondent on the morning of 9th March 1975 He purchased 1500 grms. of vegetable ghee from an open tin lying in the shop of the first respondent after giving the necessary intimation and paying the price of Rs. 15. 75 ps. for the said quantity. It appears that the first respondent instead of giving the entire 1500 gms. in one lump to the Food Inspector poured 500 gms. in each of the three bottles which were kept ready by the Food Inspector for collecting and dividing the sample in three equal parts from the same tin in the presence of panch Rameshchand L. Shah. The three bottles were thereafter packed and sealed in the manner required by Rule 16 of the Prevention of Food Adu lteration Rules 1955 hereinafter called the Rules. One such bottle was forwarded by the Food Inspector to the Public Analyst for analysis and report. The second sealed bottle was handed over to the first respondent under a receipt and the third sealed bottle was forwarded to the court of the learned Magistrate as required by law. The report of the Public Analyst dated 29th March 1975 ex. 19 shows that the sample did not conform to the provision of the Act and the Rules; in other words the sample of vegetable ghee forwarded for analysis was adulterated. The report of the Public Analyst dated 29th March 1975 ex. 19 shows that the sample did not conform to the provision of the Act and the Rules; in other words the sample of vegetable ghee forwarded for analysis was adulterated. On receipt of this report a copy of the same was sent to the first respondent on 2nd April 1975 through a peon under Rule 9 (j) of the Rules. There is no dispute as to the fact that the copy of the report was received by the first respondent on 2nd April 1975 As the report of the Public Analyst indicated that the sample vegetable ghee did not conform to the standard prescribed by entry A. 19 in Appendix B to the Rules the first respondent came to be prosecuted for having committed an offence punishable under sec. 16 (1) (a) (i) read with sec. 7 (i) of the Act. ( 3 ) THE learned trial Magistrate framed the charge ex. 22 dated 13th October 1975 against the first respondent for the commission of the aforesaid offence. The first respondent pleaded not guilty to the said charge and claimed to be tried. The prosecution led the evidence of the Food Inspector Shri M. M. Pandya P. W; 2 ex. 10 and also examined the panch witness Rameschand Laxmichand Shah P W. 3 ex. 27. The prosecution also relied on the evidence of the complainant Shri N. V. Risaldar P. W. I ex. 6 who lodged the complaint after obtaining the necessary sanction. The report of the Public Analyst dated 29th March 1975 has been produced at ex. 19. On a consideration of the aforesaid prosecution evidence the learned trial Magistrate came to two conclusions namely (i) there had been a breach of Rule 9 (j) of the Rules inasmuch as the copy of the report of the Public Analyst was sent to the first respondent by hand delivery instead of by registered post as required by that rule and (ii) the Food Inspector ought to have taken the sample of 1500 gms. in one lump and thereafter divided it into three equal parts as required by sec. 11 (1) (b) of the Act and his having failed to do so amounted to a breach of the said provision. in one lump and thereafter divided it into three equal parts as required by sec. 11 (1) (b) of the Act and his having failed to do so amounted to a breach of the said provision. In support of this conclusions the learned trial Magistrate placed strong reli ance on a decision of the Madhya Pradesh High Court in Babulal v. State 1976 (1) F. A. C. 69. These are the two grounds on which the learned trial Magistrate came to the conclusion that the mandatory requirements of the Act and the Rules had been breached and the accused was there fore entitled to an acquittal. The complainant feeling aggrieved by this order of acquittal recorded by the learned trial Magistrate has come in appeal to this court. ( 4 ) RLUE 9 (j) of the Rules as it stood on the date of the commission of the offence enjoined upon the Food Inspector to send by registered post a copy of the report received in form III from the Public Analyst to the person from whom the sample was taken within 10 days of the receipt of the said report. In the instant case it is an admitted fact that a copy of the report of the Public Analyst dated 29th March 1975 was sent to the first respondent by hand delivery on 2nd April 1975 i. e. within 10 days from the date of receipt thereof by the Food Inspector. The only contention which was urged before the learned trial Magistrate was that under Rule 9 (j) the report must be sent by registered post and that rule being mandatory the service of the copy of the report by hand delivery on 2nd April 1975 could not come to the aid of the prosecution. The ques tion whether Rule 9 (j) of the Rules in so far as the mode of service is con cerned is mandatory or directly came to be considered by a Division Bench to which I was a party in Criminal Appeals Nos. 480 481 485 and 643 of 1976 decided on 27th February. 1978 (Martand Risaldar v. Chhaganlal 19 G. L. R. 487 ). 480 481 485 and 643 of 1976 decided on 27th February. 1978 (Martand Risaldar v. Chhaganlal 19 G. L. R. 487 ). In that case the Division Bench came to the conclusion that Rule 9 (j) of the Rules which casts a duty on the Food Inspector to send a copy of the report of the Public Analyst by registered post is directory and substantial compliance with the rule would be sufficient. In view of this settled legal position the first contention that the accused is entitled to an acquittal as the mandate of Rule 9 (j) has not been complied with is without merit. The copy of the report having admittedly been served on the accused within 10 days from the date of receipt of the report by the Food Inspector there is substantial compli ance with Rule 9 (j) and therefore the first ground on which the acqui ttal is based cannot prevail. ( 5 ) THE second ground on which the acquittal is based bears on the language of sec. 11 (1) (b) of the Act. That section reads as under: (1) When a food inspector takes a sample of food for analysis he shall; (a) xx xx xx xx (B) except in special cases provided by rules under this Act divide the sample then and there into three parts and mark and seal or fasten up each part in such a manner as its nature permits this provision enjoins upon the food inspector to separate the sample into three parts there and then and mark and seal or fasten each part in such a manner as its nature permits. By necessary implication contends the learned advocate for the accused it is incumbent upon the Food Inspector to purchase the required quantity having regard to Rule 22 of the Rules and thereafter divide that sample into three equal parts. One part out of the three parts must be delivered to the person from whom the sample is taken while out of the remaining two parts one must be sent to the Public Analyst and one to the concerned court. One part out of the three parts must be delivered to the person from whom the sample is taken while out of the remaining two parts one must be sent to the Public Analyst and one to the concerned court. Obviously the purpose of dividing the sample into three equal parts is to ensure that the contents of all the three bottles are identical in nature and substance and the sample sent to the Public Analyst for analysis is representative of the bulk of the commodity which was being sold and wherefrom the sample was obtained. The learned trial Magistrate has placed reliance on the decision of the Madhya Pradesh High Court in Babulal v. The State 1976 (1) F. A. C. 69 in taking the view that in the instant case the Food Inspector had violated the provisions of sec. 11 (1) (b) of the Act. The decision of the Madhya Pradesh High Court turns on two English cases: Mason v. Cowdary (1900) 2 Q. B. 419 and Skeate v. Moore 1975 (1) F. A. C. 315 Relying on these two decisions Dubey J. of the Madhya Pradesh High Court came to the conclusion that if the Food Inspector does not purchase a sufficient quantity of the commodity for being divided into three equal parts each part being of the quantity required by Rule 22 of the Rules but instead purchases the commodity in three equal parts of the quantity required by Rule 22 of the Rules he commits an infraction of sec. 11 (1) (b) of the Act. Now in that case the Food Inspector went to the grocery shop of the accused and purchased 125 gms. of groundnut oil from the canistar each time and filled it in three different bottles. The Food Inspector thus purchased 375 grms. of groundnut oil from the open container on payment of Rs. 1. 90. ps. for which a receipt was obtained from the accused. It was argued that the total sample of 375 grms. of oil was not purchased in a single unit and was not divided in three equal parts thereafter as required by sec. 11 (1) (b) of the Act. 1. 90. ps. for which a receipt was obtained from the accused. It was argued that the total sample of 375 grms. of oil was not purchased in a single unit and was not divided in three equal parts thereafter as required by sec. 11 (1) (b) of the Act. The learned Judge in the facts of that case observed as under:thus the law is clear on the point that the Food Inspector should collect the whole bulk of the sample in one container and then he should divide it into three equal parts. The purpose in making such a provision In the law is that each part of the sample should represent the whole bulk of the total sample obtained from the vendor. In support of this conclusion reliance was placed by the learned Judge on the aforesaid two English decisions. With respect to the learned Judge of the Madhya Pradesh High Court the two English decisions on which reliance is placed in my opinion do not directly apply as they turn on their peculiar facts. ( 6 ) IN Mason v. Cowdary (1900) 2 Q. B 419 the inspector had pur chased six bottles of camphorated oil. The oil was exposed for sale in bottles which were apparently not prepared by the respondent but each of which bore a label with the name of a chemist in a neighbouring town upon it. There was no evidence whether or not the bottles were identical in character or appearance or whether or not the labels on all the six bottles bore the name of the same chemist. The six bottles were all purchased at the same time and were divided into three lots of two bottles each each lot having been separately sealed and packed in a separate packet None of the bottles had been opened and their contents were not mixed before division into three parts. But the two bottles out of the six bottles were sealed in one packet in the same state in which they were purchased The report of the Public Analyst indicated that the camphorated oil contained in the bottles was 17 1/2% whereas it should have been 20%. In the background of these facts Darling J. took the view that as the contents of the same bottle had not been divided in three equal parts the requirements of sec. In the background of these facts Darling J. took the view that as the contents of the same bottle had not been divided in three equal parts the requirements of sec. 14 of the sale of Food and Drugs Act 1875 had been violated. ( 7 ) IN Skeate v. Moore 1975 (1) F. A. C. 315 Schedule 7 to the Food and Drugs Act required that the sampling officer shall forthwith divide the sample into three parts each part to be marked and sealed or fastened up in such manner as its nature permits. The language of this provision is similar to sec. 11 (1) (b) of Act with which we are presently concerned. In that case the sampling officer took six meat pies as sample and made three lots of two pies each and submitted one lot of two pies for analysis. The analysis of the two pies showed that the aggregate of meat in two pies represented a smaller percentage of the total of the two pies than the percentage required to be contained in a meat pie under the Regulations and it was on the basis of that analysis which showed that one pie at least of the two pies analysed had been deficient in meat content that the accused was charged and convicted of the offence of selling a meat pie in contravention of the regulations. Bridge J. observed that the facts clearly disclose that the quantities of meat in the pies varied from pie to pie and on the basis of the analysis alone in respect of the lot of two pies the accused cannot be convicted. ( 8 ) IT will appear from the facts of the aforesaid two English cases on which the learned Judge in the Madhya Pradesh High Court has placed reliance that the sample which was sent to the Public Analyst in each case for analysis did not represent the bulk of the commodity which was being sold by the vendor. In the first case six bottles of camphorated oil were purchased and they were divided into three lots of two bottles each. There was no evidence whether or not the bottles were identical in character or appearance though they were purchased from the same vendor at the same time. In the first case six bottles of camphorated oil were purchased and they were divided into three lots of two bottles each. There was no evidence whether or not the bottles were identical in character or appearance though they were purchased from the same vendor at the same time. The contents of each bottle had not been divided into three equal part but each bottles was kept in tact and out of the six bottles two bottles were sent to the Public Analyst for analysis. It could not therefore be said that the sample had been divided in three equal parts to satisfy the requirement of sec. 14 of the Sale of Food and Drugs Act 1875 In the second case six meat pies were purchased by the Sampling Officer and they were divided into three lots each of two pies. One lot of two pies was sent to the Public Analyst and it was found that out of the two pies the meat content in one pie was below the standard prescribed. In that case also it could not be said that the two pies which were sent to the Public Analyst were representative of the meat content in all the six pies in fact the meat content in the two pies which were sent to the Public Analyst also differed. Each pie had not been divided into three equal parts and there was no evidence to suggest that all the six pies had been prepared from the same mixture by the vendor. Therefore in the special facts of that case the court took the view that the two pies which were forwarded to the Public Analyst for analysis did not represent the bulk of the commodity sold by the vendor. The facts before the learned Judge of the M. P. High Court were not identical. In that case the Food Inspector purchased 375 gms. of oil from one single canister from which oil was being sold by the vendor. Instead of purchasing the entire bulk of 375 gms. at a time the Food Inspector took 125 gms. in each of the three bottles and sealed and packed those bottles as required by law. Could it then be said that the content of each bottle was different from the content of the other bottles or the oil in the canister ? at a time the Food Inspector took 125 gms. in each of the three bottles and sealed and packed those bottles as required by law. Could it then be said that the content of each bottle was different from the content of the other bottles or the oil in the canister ? It would have been a different matter if the Food Inspector had purchased 125 gms. of oil from three different canisters instead of the same container. However the oil in the same container would not vary in content merely because it is sold in three parts instead of one part. In the present case also vegetable ghee was purchased from the same container by the Food Inspector in three parts instead of in one bulk of 1500 grms. Can it be said that vegetable ghee taken in three bottles was not identical in content merely because it was sold to the Food Inspector in three separate parts instead of one part ? In other words could it be argued that even though the vegetable ghee was purchased from the same container it varied in content ? I am afraid such a conclusion is not possible for the simple reason that the ghee having been purchased from the same container could not be different in nature or substance. I am therefore with utmost respect to the learned Judge of the M. P. High Court unable to share his view. In my opinion the procedure followed by the Food Inspector while purchasing the sample ghee is not in any way contrary to the requirements of section 11 (1) (b) of the Act. The second ground on which the accused came to be acquitted cannot therefore be upheld. It must however be clarified that the question whether the sample is a representative one would depend on the nature of the commodity in each case. . . . . . . . . . . . . . . . . . . ( 9 ) IN the result this appeal succeeds. The order of acquittal is set aside. The accused is convicted under sec. 16 (1) (a) (i) read with sec. 7 (i) of the Act and is directed to suffer R. I. for three months and to pay a fine of Rs. 1 0 i. od. to suffer R. I. for one month. The order of acquittal is set aside. The accused is convicted under sec. 16 (1) (a) (i) read with sec. 7 (i) of the Act and is directed to suffer R. I. for three months and to pay a fine of Rs. 1 0 i. od. to suffer R. I. for one month. Warrant of arrest to issue after two weeks. .