JUDGMENT This appeal is filed by the Food Inspector, Corporation of Cochin, challenging the acquittal of the respondent herein in C.C. No. 1021 of 1978, on the file of the Chief Judicial Magistrate's Court, Ernakulam, wherein he had been charged for offences under sections 7(1) and sections 16(1-A)(i) read with section 2 (1-a) ( m) of the Prevention of Food Adulteration Act (for short the ‘Act’) and also read with A. 11.02.08 of Appendix B of the Prevention of Food Adulteration Rules, 1955 (for short the ‘Rules’). 2. The appellant herein (P.W. 1) visited the hotel run by the respondent on 28th November, 1977 at 2.15 p.m. and finding ice cream kept for sale in a Steel Can in a deep freezer purchased 900 grams of ice cream for the purpose of analysis in the presence of witnesses including P.W. 2. and sampled the same in accordance with the Rules as per Exhibit P-6, mahazar, sent one of the samples to the Public Analyst, Trivandum, who after observing the requisite formalities conducted analysis of the sample and issued Exhibit P-9, report which showed the following : Total solid: 30.5% by weight. Milk fat: 3.8% by weight. Protein: 3.9% by weight. Total sugar as cane sugar: 19.1% by weight. The Analyst gave the opinion that the sample does not conform to the standard prescribed for ice cream under the Rules and therefore adulterated. According to the standards prescribed, the ice cream shall contain not less than 10% milk fat, 3.5% protein and 36% total solids. A copy of the report with the intimation under section 13 (2) of the Act was duly sent to the respondent after the Food Inspector filed a complaint. During the course of the trial, at the instance of the respondent, one of the samples in the custody of the Local Health Authority was sent by the Court to the Director of the Central Food Laboratory for analysis. The report of the Director, Exhibit P-11 showed the following : Total solids: 22.6% Milk fat: 3.3% Protein: 3.6% The Director also gave his opinion that the sample is adulterated. 3. The Food Inspector was examined as P.W. 1 and one of the attestors of the mahazar as P.W. 2. Public Analyst was examined as P.W. 3. The defence did not tender any evidence. 3. The Food Inspector was examined as P.W. 1 and one of the attestors of the mahazar as P.W. 2. Public Analyst was examined as P.W. 3. The defence did not tender any evidence. The respondent in his statement before the trial Court, while admitting the purchase of the sample by the Food Inspector, the receipt of the notice and the price, contended that the sample was not properly taken inasmuch as the ice cream in the can had not been stirred properly before taking the sample. 4. The trial Court was of the view that Food Inspector should take a representative sample of the ice-cream and for that purpose make a vertical cut of the ice-cream in the can and take one entire portion and stir it properly in order to ensure homegenity and since such a method was not adopted by the Food Inspector in this case, the sampling could not be regarded as proper. The trial Court also relied on what it described as “discordant results” of the analysis by the Public Analyst and by the Director of Central Food Laboratory as proving that the sampling was not homogeneous and representative. The trial Court was also not prepared to apply the principle laid down in State of Kerala v. Alassery Mohammed (1978) MLJ. (Crl.) 647: (1978) 2 S.C.J. 510: (1978) L.W. (Crl.) 55: (1978) 2 S.C.R. 820 : A.I.R. 1978 S.C. 933 and in State of Kerala v. John 1978 K.L.T. 738. Accordingly, the respondent was acquitted. 5. The learned Public Prosecutor would contend that the trial Court committed serious error in holding that the sample taken must be representative or of homogeneous that the view taken by the trial Court is contrary to the two decisions referred to above as also to two more decisions of this Court reported in Alctius Wilson v. Food Inspector 1980 K.L.T. 834 and in Food Inspector, Corporation of Cochin v. Hassan and another 1982 K.L.T. 941. Learned Public Prosecutor also contended that the report of the Public Analyst is superseded by the report of the Director of the Central Food Laboratory and therefore the trial Court was not justified in relying on the report of the Public Analyst to lay stress on the so-called divergence between the two reports and that such reliance on the so-called divergence is illegal. In reply, the learned Counsel for the respondent, Sri V. Rama Shenoi, supporting the view taken by the trial Court invited the attention of the Court to certain text books on Food Analysis and placed reliance on the decisions reported in Food Inspector, Municipal Corporation, Baroda v. Madanlal Ramlal Sharma and another A.I.R. 1983 S.C. 176 and Municipal Corporation of Delhi v. Ghisa Ram I.L.R. (1965) 1 Punj. 543. According to him, the Food Inspector has to ‘take’ the sample and that must be done in accordance with the scientific methods prescribed. The learned Counsel also contended that when a mass of ice cream is kept in a vessel, the fat rises to the top and it is impossible to expect the vendor to give a sample which is representative of the whole ice cream in the vessel without stirring the entire mass and that law does not expect the impossible to be done. 6. In the decision reported in State of Kerala v. Alassery Mohammed (1978) 2 S.C.R. 820 : 1978 Crl.L.J. 925: (1978) 2 S.C.C. 386 : 1978 All.Crl. C. 109: (1978) S.C.C. (Crl.) 198: (1978) L. W. (Crl.) 55: (1978) MLJ. (Crl.) 647: (1978) 2 S.C.J. 510: A.I.R. 1978 S.C. 933 which is a common judgment in several appeals, the food article in one of the cases was stated to be ghee. It is not possible to find out the identity of the other articles in question in other appeals involved in that decision. The argument regarding the need for the sample to be a representative sample has been dealt with in paragraph 13 of the judgment in the following manner : “It was argued, with reference to “Methods in Food Analysis - 2nd Edition by Maynard A. Joslyn” that the sample must be a representative sample. It is with that view that the quantity was prescribed in rule 22 and should not be permitted to be tampered with in any manner. We are not impressed by this argument at all. A representative sample has got a different connotation, meaning and purpose in commercial transactions. If, for instance, an average price is to be fixed for a huge quantity of, say, wheat lying in bulk in different storages, then samples must be taken from all the storages to make them a representative sample of the entire quantity for the fixation of the average price. If, for instance, an average price is to be fixed for a huge quantity of, say, wheat lying in bulk in different storages, then samples must be taken from all the storages to make them a representative sample of the entire quantity for the fixation of the average price. Taking sample from one storage will not be sufficient. In our statute the ingredient of the offence is, as mentioned in the 7th section of the Act, manufacturing for sale, storing, selling or distributing any adulterated food. If the food sold to the inspector is proved to be adulterated, it is immaterial whether the sample purchased by him is a representative sample or not of the entire stock in possession of the person. A person who stores or sells such sample is liable to be punished under section 16 (1) (a) (i) of the Act.” (Italics supplied.) 7. The sample involved in the decision reported in State of Kerala v. John 1978 K.L.T. 738 was buffalo milk and the accused had been acquitted on the ground that there was no sale as defined in the Act as the milk which the co-operative society collected was not intended for direct sale as such. That was because the function of the society was only to collect the milk. The milk so collected will be sent to another institution, co-operative milk supply Union which alone will undertake the sale of the milk. This Court held that the conclusion of the trial Court was erroneous and that there was a sale involved in that case. Kader, J., in the course of the judgment relying on the observations of the Supreme Court in State of Kerala v. Alassery Mohammed (1978) MLJ. (Crl.) 647: (1978) 2 S.C.J. 510: A.I.R. 1978 S.C. 933 observed thus : “…….. If an article of food sold to a Food Inspector is proved to be adulterated it is immaterial whether the sample purchased by him is a representative sample or not of the entire stock ………” 8. The trial Court overcame these decisions by observing that these decisions related to cases where there were several boxes or containers and the sample was taken only from one container and that these decisions laid down only that the food inspector could not be expected to mix the contents of all the containers and take a sample thereof. The trial Court overcame these decisions by observing that these decisions related to cases where there were several boxes or containers and the sample was taken only from one container and that these decisions laid down only that the food inspector could not be expected to mix the contents of all the containers and take a sample thereof. Evidently, the learned Chief Judicial Magistrate has not followed the import of the decision of the Supreme Court in Alassery Mohammed's case.2 A specific argument was raised before the Supreme Court that the sample purchased must be a representative sample. No doubt, the argument was raised in the context of violation of rile 22 of the Rules. Nevertheless, the Supreme Court considered the question whether representative sample of the entire stock was expected to be purchased and held that such a representative sample need not be purchased. Supreme Court also observed that in commercial transactions in order to fix average price, it would be necessary to take a representative sample of the entire quantity stored in different storages; but no such requirement is present for the purpose of the Act and the Rules. The principle laid down is that the sample purchased by the Food Inspector need not be representative of the entire stock in possession of the person concerned. This must apply irrespective of the fact whether the article is stored in one container or in different containers. 9. It is in this manner that this Court understood the decision of the Supreme Court as could be seen from the two decisions of this Court mentioned above. In the decision of this Court reported in Alotius Wilson v. Food Inspector the food article involved was ice cream. The accused was acquitted on the ground that the entire 100 kilograms of ice cream found in the container was not stirred in order to make the sample taken a representative sample. The acquittal had been reversed by the Sessions Court in revision and the same was challenged before this Court. This Court upheld the view taken by the learned Sessions Judge. In considering the controversy, I observed as follows : “3. There is evidence to show that the Food Inspector purchased 900 grams of ice cream taken out of 100 kgs. of ice cream kept in a vessel inside the deep freezer. No witness has deposed that the entire mass of 100 kgs. In considering the controversy, I observed as follows : “3. There is evidence to show that the Food Inspector purchased 900 grams of ice cream taken out of 100 kgs. of ice cream kept in a vessel inside the deep freezer. No witness has deposed that the entire mass of 100 kgs. was stirred before the sale was made. There was no suggestion made to any witness that whenever ice cream is sold, the entire mass of ice cream contained in the vessel will be stirred. If that is the normal mode of serving or selling ice cream, the salesman should have done it. The act and the rules do not contemplate that in situations like this, the entire mass of ice cream or food article must be stirred well before any portion is sold as sample to the Food Inspector….…………The view taken by the learned Magistrate that the sample should be representative of the entire quantity also does not appear to be correct-Vide State of Kerala v. Alassery Mohammed (1978) MLJ. (Crl.) 647: (1978) 2 S.C.J. 510: A.I.R. 1978 S.C. 933. …… This decision has been followed in Food Inspector, Corporation of Cochin v. Hassan and another 1982 K.L.T. 941. which also was a case relating to ice cream. Poti, Ag. C.J. (as he then was), after referring to the decisions in Alassery Mohammed's case and in State of Kerala v. John 1978 K.L.T. 738, observed as follows : “In the case before my learned brother Bhat, J., in Alotius Wilson v. Food Inspector 1980 K.L.T. 834 a contention similar to the one set up here was urged. That was a case of purchase of 900 grams of ice cream from out of 100 kgs. of ice cream kept for sale. In that case too there was no evidence that the entire mass was stirred before the sale was made. As in this case in that case too there was no suggestion to any witness that whenever ice cream is sold, the entire mass of ice cream contained in the vessel will be stirred. In fact that is not a contention which is urged before me. Counsel Shri Rama Shenoi did not urge that whenever ice cream is sold, the entire mass of ice cream will be melted and portion sold to the customer. In fact that is not a contention which is urged before me. Counsel Shri Rama Shenoi did not urge that whenever ice cream is sold, the entire mass of ice cream will be melted and portion sold to the customer. If that was done, I am afraid, there will not be any customer for the ice cream. If ice cream is stirred for supplying a part to the customer it will not remain as ice cream and will not be accepted by the buyer as ice cream. As rightly observed by my learned brother Bhat, J., if that was the normal mode of serving or selling ice cream the salesman should have done it. If that was not the way the ice cream was normally sold, that will not be done when the sale is made to the Food Inspector also. The learned Judge observed that the view taken by the learned Magistrate that the sample should be representative of the entire quantity also does not appear to be correct and referred to the decision in State of Kerala v. Alassery Mohammed (1978) MLJ. (Crl.) 647: (1978) 2 S.C.J. 510: A.I.R. 1978 S.C. 933. I think it is now well-settled that if the sale to the Food Inspector even for the purpose of sampling is a sale of adulterated food the offence must be said to have been committed. Therefore whether the sample taken by the Food Inspector is a representative sample does not arise for consideration at all.” “6. Assuming that the sale should be of a representative sample even then I do not think that the second accused in this case would be entitled to succeed in his plea. That is because how a sample would be representative must necessarily depend on the nature of the goods sold and the usual mode of supply to the customer when he comes to purchase. If there is normally a practice of stirring and mixing when the foodstuff concerned is sold to customers from time to time representative sample would be that which is taken after such stirring and mixing. If on the other hand the usual mode of sale is to take portions by portions without any such stirring or mixing there can be no complaint that the sample sold is not a representative sample. If on the other hand the usual mode of sale is to take portions by portions without any such stirring or mixing there can be no complaint that the sample sold is not a representative sample. Ice cream is a commodity which is not expected to lose its shape and form wheat the sale is affected. Ice cream when liquefied is no longer treated as ice cream. It will not be taken by a customer as ice cream then. It is too unreasonable therefore to expect that a representative sample of ice cream could be taken by the Food Inspector only by stirring the entire mass of ice cream available for sale and taking the sample thereafter. Hence there is no justification to apply any such rule of representative sampling ……..”. 10. The present is obviously a case of sale of ice cream to the Food Inspector for the purpose of analysis. Learned Magistrate has railed to take note of the significance of such a sale. The respondent is not prosecuted for the manufacture for sale or for storage of adulterated food, he is being prosecuted for selling adulterated food article. This is not a case where the Food Inspector compulsorily took a sample of a food article manufactured for sale or stored by the respondent. This is a case where the Food Inspector went to the respondent's hotel and finding ice cream available there for sale asked for 900 grams of ice cream to be sold to him and the sale; was effected by the respondent. Obviously in such a case it is for the respondent to take all necessary precautions to ensure that the quantity of ice cream that he sells to the Food Inspector would be a satisfactory portion of the whole stock of ice cream available with him. If in a mass of ice cream left to stand in a container the cream of fat rises to the top and therefore the top portion will not represent the entire mass and may not conform to the standards prescribed for ice cream, it is for the vendor, who ought to know the peculiar feature of the food article better than anyone else, to adopt such process as he deems fit to ensure that 900 grams of ice cream which he sells to the Food Inspector is properly taken from the container. If it requires stirring the entire mass or vertical cutting and stirring as observed in the two earlier decisions of this Court, it is difficult to visualise a situation where the ice cream could be stirred to convert it into liquid form for the purpose of sale and if that is the usual way in which the ice cream is sold to the customer then, it is for the vendor to undertake such a process before sale is effected. One would necessarily be sceptical about any such process by which solid or viscous ice cream is reduced to liquid from before sale. Any way, if the respondent has a genuine case that is the proper way to sell the ice cream, he should have adopted that way before selling 900 grams of ice cream to the Food Inspector. 11. Learned Counsel for the respondent, Sri Rama Shenoi attempted to distinguish between a pure case of sale by the vendor and a case of “taking” sample by the Food Inspector under section 10 of the Act. According to the learned Counsel, the power of the Food Inspector is only to “take” sample and since the Food Inspector is a technically qualified person he has to “take” the sample in a scientific way. Scientific way, according to the learned Counsel in the case of ice cream is by stirring the entire stock of ice cream available in the container or cutting a section and stirring before measuring out 900 grams for sampling. I am unable to accept this submission. Section 10(1)(a) of the Act states that Food Inspector shall have power to “take” samples of any article of food. Equally section 10(2) of the Act contemplates Pood Inspector's entry and inspection of any place of manufacture or storgage or exhibition for sale and “taking” samples of articles of food, etc. The expression “take” could not have the limited connotation which the learned Counsel seeks to give to it. The expression “take” has several meanings, such as “seize, grasp, capture, catch, receive into the body, appropriate, secure, get, receive by payment, assume, choose, adopt, consume, obtain, derive from source or by same process receive enjoy, accept etc. Thus, it could be seen that the word ‘take’ is of wide import. Seizure of article may amount to “taking”. The expression “take” has several meanings, such as “seize, grasp, capture, catch, receive into the body, appropriate, secure, get, receive by payment, assume, choose, adopt, consume, obtain, derive from source or by same process receive enjoy, accept etc. Thus, it could be seen that the word ‘take’ is of wide import. Seizure of article may amount to “taking”. Similarly receiving, obtaining or accepting an articde of food would also amount to “taking” It is open to the Food Inspector without disclosing his identity to purchase a food article and send it for analysis. That may not fall within the four corners of section 10. It is open to him to “take” sample in the sense of purchase of a sample after disclosing his identity and in accordance with the Act and the Rules. The vendor who is expected to co-operate with the Food Inspector will sell the sample to the Food Inspector. If the vendor does not co-operate with the Food Inspector, the latter will not be helpless. It is open to him to get a sample from the premises, provided he satisfies the other requirements of the Statute. In certain cases the Food Inspector is empowered to seize and carry away certain food articles. Perhaps, different considerations may arise in a case where the Food Inspector in exercise of his powers and in the face of non-co-operation from the vendor gets a sample compulsorily by using force. It is unnecessary for me to consider such a situation in this case. But, where, as in this case, on the Food Inspector disposing his identity, a vendor effects sale of the food article to the Food Inspector for the Purpose of analysis, it is for the vendor to take all necessary precautions. If the vendor lakes a portion of the ice-cream from out of the mass available in the container in the deep freezer and sells that portion to the Food Inspector, he cannot turn round and say that the sampling is not proper since the Food Inspector did not stair the entire mass of ice-cream available in ‘the container or did not make a vertical cut and stirr the mass. It has to be remembered that any person not necessarily the Food Inspector and not necessarily a Government Officer, is entitled to purchase an article of food from a vendor and send it for analysis provided he follows the procedure mentioned in section 12 of the Act. If a private person purchases a portion of ice-cream from the respondent under section 12 of the Act and causes the sample to be analysed and if the sample is found to be adulterated, the vendor cannot turn round and find fault with the purchaser for not stirring the entire mass of ice-cream in the container or for not taking a section and stirring it before purchasing it. Equally so, at any rate, in the case of sale to the Food Inspector the vendor cannot come forward with such a complaint. 12. I will now consider the decision of a Division Bench of the Punjab High Court relied on by the learned Counsel for the respondent. ( Municipal Corporation of Delhi v. Ghisa Ram I.L.R. (1965) 1 Punj. 543). The food article involved in that case was curd. The case was decided actually on the ground that safeguard under section 13 (2) of the Act was denied to the accused because of the long delay in filing the complaint. Public Analyst as well as other experts were examined in that case and it was found that there would be changes in the sample of curd after the lapse of some time. It was also contended before the Court in that case that the sample ought to have been taken by making vertical cuts and taking one entire part and that portion ought to have been churned and divided. As a matter of fact there was evidence of experts in that case in support of that contention. The suggestion was that sample was taken not in the manner as indicated by the exports, but from the top layer of the curd available in the container. Therefore, the Court took the view that the sample not having been taken in the proper manner and by adopting proper method, the result of the analysis could not be accepted. 13. The suggestion was that sample was taken not in the manner as indicated by the exports, but from the top layer of the curd available in the container. Therefore, the Court took the view that the sample not having been taken in the proper manner and by adopting proper method, the result of the analysis could not be accepted. 13. The same case was sought to he relied on in the decision reported in Food Inspector, Corporation of Cochin v. Hassan and another 1982 K.L.T. 941 and this Court declined to apply the aforesaid principle in the case of ice cream. Poti, A.C.J. (as he then was) observed as follows: “I do not want to express any view on the question whether sample of curd should be taken in that manner. Assuming that it could he so taken-perhaps curd which we are used to in this part of the country may not be of the same nature as the curd which the experts were talking of in the judgment in question-perhaps curd even if it is stirred may be acceptable to a customer as curd and therefore it could be sold as curd. But that cannot in any way be said of ice-cream. If this explanation is not an explanation for the decision of the Punjab High Court, with great respect, I must express my disagreement with the view expressed by that Court. It is possible to view that case as a case disposed of on the evidence of experts available in that case. I am concerned here with ice-cream and there is no justification assume particularly, in the background of what I have said here that the sample of ice-cream should be taken in the manner indicated in the judgment of the Court below.” With great respect I agree with the above observations. It is also doubtful whether one can travel beyond the four corners of the Act and the Rules to lay down a particular way of taking sample, a way not laid down in the Act and the Rules. It is not as if the rule making authority is not assisted by experts or by any expert body. Section 3 of the Act contemplates the constitution of a Central Committee for Food Standard for advising the Central and the State Governments on matters arising out of the administration of the Act. It is not as if the rule making authority is not assisted by experts or by any expert body. Section 3 of the Act contemplates the constitution of a Central Committee for Food Standard for advising the Central and the State Governments on matters arising out of the administration of the Act. The committee is to consist inter alia of Director General of Health Services, Director of Central Food Laboratory, two experts, etc. If the rule making authority backed by the expertise of such a Committee has not prescribed any particular manner of “taking” a sample of ice-cream, I do not think, it is for the Court to lay down any such manner, particularly a manner which is contrary to the ordinary course of business. 14. Learned Counsel for the respondent Sri Rama Shenoi contended that in the light of the decision in Food Inspector, Municipal Corporation, Baroda v. Madanlal Ramlal Sharma and another A.I.R. 1983 S.C. 176., the above referred decisions of this Court require reconsideration. According to the learned Counsel, Supreme Court has laid down that the sample taken must be representative and homogeneous. The case related to curd. Paragraph 2 of the judgment shows that the sample of curd Was purchased from a container having 2½ kilograms of curd and thereafter the Food Inspector churned the curd, divided it into three equal parts and prepared the samples. The vendor was convicted by the trial Court but was acquitted by the Sessions Court in appeal On, the ground that churning was not done properly in order to render the sample homogeneous and representative of the entire stock. The High Court affirmed the acquittal. The discussion begins with the expression of “reluctance to interfere with the order of acquittal six years after acquittal.” A careful’ reading of the decision shows that it was not argued, before the Supreme Court that the entire mass of curd in the container should be stirred or a vertical section of the curd should be taken,: and stirred before curd is sold. That was a case where the vendor took a portion of the curd and gave it to the Food Inspector. Food Inspector stirred that portion sold to him with a spoon. The argument was that churning curd with spoon would not be sufficient and churning ought to have been done in some other manner. That was a case where the vendor took a portion of the curd and gave it to the Food Inspector. Food Inspector stirred that portion sold to him with a spoon. The argument was that churning curd with spoon would not be sufficient and churning ought to have been done in some other manner. That contention has been rejected by the Supreme Court. Supreme Court highlighted the fact that no provision in the Act or the Rules made it obligatory that churning must be done with the use of some machine so as to make the sample homogeneous or representative. Supreme Court was also conscious that in milk and milk preparations, including curd, fat settles on at the top. Supreme Court observed further: “………. For this purpose churning is one of the methods of making the sample homogeneous and representative. But having said this, there is nothing in the Act or the Rules which prescribes that churning must be done by some instrument, and that churning done by hand would not provide a homogeneous and representative sample. Common sense dictates that articles of food like milk and curd when churned with hand would properly mix-up from, top to bottom. More so when the quantity is either 600 grams which was the quantity purchased or 2½ Kgs., which was the quantity in the container. There was evidence that churning was done by spoon …….”. In the absence of evidence to show that churning was not effective, Supreme Court was not prepared to hold that the sample was not homogeneous. 14. The argument before the Supreme Court was not that the entire mass of curd in the container should have been churned or stirred, or that a vertical section of the curd should be taken. The controversy related to the manner of churning the curd sold by the vendor. Supreme Court took the view that in the absence of any direction in the Act or the Rules that churning should be done in a particular manner or by use of particular machine or other equipment and in the absence of evidence to show that churning by hand done in that case was not effective, the Court could hold that the sampling was done properly. As already pointed out, what applies to a food article like curd may not apply to a food article like ice cream. As already pointed out, what applies to a food article like curd may not apply to a food article like ice cream. Supreme Court has not laid down that the entire mass of the food article in storage must be churned or stirred or that a vertical section must be taken. I am unable to agree with the stand taken by the learned Counsel for the respondent that the view taken by this Court in the two earlier decisions referred to above requires reconsideration in the light of the above decision of the Supreme Court. 15. Learned Counsel for the respondent also relied on certain Text Books in support of his contention. The text books are: Chemical Analysis of Food and Food Products by Morris B. Jacobs-3rd Edition and Food Analysis by A. G. Woodman-4th Edition. I have carefully gone through the relevant chapters in these two text books. Neither of these text books states that when a sample of ice cream is taken for the purpose of analysis, the entire mass in the container or vessel must be stirred properly before taking the sample or that vertical section must be taken. These books no doubt lay emphasis on the importance of taking sample properly in order to obtain correct results. But, that does not support the argument of the respondent in this context. Further, these are text books intended for the guidance of Food Analysis, who themselves are required to take samples in laboratories. 16. It may perhaps be open to the respondent to contend that when the vendor hands over 900 grams of ice cream to the Food Inspector, the latter must ensure that portion put in each sample bottle must be similar to each other or must be homogeneous; otherwise, the contents of the three bottles may bring forth different data on analysis. But in the facts of the present case there is nothing to show that this part of the sampling was not done properly. Obviously ice cream could be put in bottles only after it liquifies and the liquification is a process of ensuring homogenity. The mahazar in this case shows that the ice cream in the Can itself was stirred sufficiently. Obviously ice cream could be put in bottles only after it liquifies and the liquification is a process of ensuring homogenity. The mahazar in this case shows that the ice cream in the Can itself was stirred sufficiently. Food Inspector in cross-examination stated that after he obtained 900 grams of ice cream (vongi) from the respondent he put that portion in a steel cup, stirred it and converted it into liquid form and thereafter put it in three bottles. It may be that he stirred the entire mass of ice cream in the container itself; though he does not specifically mention so in has evidence. However, there is nothing to show that his evidence that after he made the purchase he stirred that portion of the ice cream and converted it into liquid could not be acted upon. Learned Counsel relied on a passage in the evidence of P.W. 2 to show that the sample taken was as such put in three bottles. It must be remembered that the witness was giving evidence after a fairly long time. There is difficulty in putting solid or viscous ice cream in bottles. In these circumstances, it has to be taken that it was liquid ice cream which was put in bottles. Assuming that homogenity of the sample purchase must be ensured, the evidence in this case would clearly suggest that homogenity was ensured in the instant case. The learned Magistrate in coming to a contrary conclusion, ignored the legal evidence in the matter and therefore, his finding cannot stand. 17. It is true that Food Inspector in Chief Examination did not say anything about stirring. Learned Counsel for the respondent would contend that he must give positive evidence regarding every act done by him because the burden of proof is entirely on him. This would be too narrow a way of looking at the implementation of the Act and the Rules. In the common judgment in Crl. Appeal No.” 265 of 1980 and Crl.R.P. No. 26 of 1980, I observed as follows: “…….. Undoubtedly, it would be useful if the Food Inspector speaks to the details of the various steps taken to show that he had acted in conformity with the Act and the Rules. In the common judgment in Crl. Appeal No.” 265 of 1980 and Crl.R.P. No. 26 of 1980, I observed as follows: “…….. Undoubtedly, it would be useful if the Food Inspector speaks to the details of the various steps taken to show that he had acted in conformity with the Act and the Rules. But where he gives evidence only in a general way indicating the steps taken by him, but without specifically referring to the details, that cannot straight away lead to acquittal of the accused. His evidence may be corroborated by the mahazar and the other evidence and supported by the contents of the report of the Public Analyst unless the same is challenged in cross-examination or in some other way known to law. Where the accused refrains from cross-examining the Food Inspector in regard to these details and fails to suggest either non-compliance with any particular detail or a rule or prejudice having been suffered by the accused, he certainly runs a risk. Such contention should be taken up in the trial Court itself, so that the prosecution is not taken by surprise and has an opportunity to give the necessary explanation. It is for the accused to raise the necessary challenge in the course of evidence ……………. In the absence of any inhibiting factor it is open to the Court to presume that the official act has been regularly performed where it is shown that the official act has been performed. It is also open to the accused to show that he has suffered prejudice on account of the action or inaction of the Food Inspector, in which case, the Court is free to draw necessary inferences.” 18. The Public Analyst was examined in this case. I find that no question was put to him in cross-examination regarding the manner in which the sample of ice cream was taken. It is true that a petition had been filed in this Court for permission to cross-examine the Public Analyst further. That petition was closed with a direction that the matter could be urged at the time of hearing of the appeal and no arguments were advanced in this regard at that stage. 19. It is true that a petition had been filed in this Court for permission to cross-examine the Public Analyst further. That petition was closed with a direction that the matter could be urged at the time of hearing of the appeal and no arguments were advanced in this regard at that stage. 19. The only other reason given by the trial Court to hold that the sample was not taken properly is what it called “discordant results” of analysis done by the Public Analyst and the Director of Central Food Laboratory. It Malayalam matter in italics, is true that percentages given by the two analysts are different in regard to various items. But, according to both reports, sample does not conform to the standard prescribed for ice cream and therefore adulterated. Learned Counsel for the respondent relies on the decision reported in Abdul Harmed v. Food Inspector 1969 K.L.R. 922. in support of his contention that the report of the Public Analyst is not completely superseded by the report of the Director of the Central Food Laboratory. I am afraid, the decision does not help him very much. That was a case where not only the report of the Public Analyst, but a certificate of the Director of the Central Food Laboratory also was unhelpful. The Division Bench of this Court accepted that under section 13 (3) of the Act certificate of the Director supersedes the report of the Public Analyst. The Division Bench posed the question to what extent the report stands superseded and answered thus: “It is nowhere stated in the Act when the certificate is received the report will stand eschewed in its entirety. But the certificate will prevail in respect of the facts stated therein. The facts if any contained in the report which are in addition to those considered in the certificate will not stand effaced by the superiority of the certificate and can be considered in evidence. (Italics supplied.) In the present case, however, such a contingency has not arisen since the report itself is of no help. It has only given the result of a physical examination like the shape of the article (axe-shaped), starch granules are round and irregular, the palisade cells of the tests are macroscelreids (rod-shaped) etc. These observations are of no help to the Court. It has only given the result of a physical examination like the shape of the article (axe-shaped), starch granules are round and irregular, the palisade cells of the tests are macroscelreids (rod-shaped) etc. These observations are of no help to the Court. So, even if we fall back upon the report for matters not covered by the certificate, the position is hot improved. The report in fact does not contain anything in addition.” 20. The decision has to be understood in the light of the provisions in sub-sections (3) to (5) of section 13 of the Act. The report of the Public Analyst can be used as evidence by the Court of the facts stated therein unless it has been superceded. Supersession could only be by a certificate issued by the Director of the Central Food Laboratory. Certificate shall also be final and conclusive evidence of the facts therein. The word “supersede” means: “to take the place of by reason of superior right, to make useless by superior power, to replace to set aside, etc.” If that be so, the report of the Public Analyst shall be replaced or displaced or set aside by the certificate of the Director. In such a case it will not be open to the Court to look at the report of the Public Analyst and rely on the facts stated therein as evidence. The Division Bench in Abdul Harneedes case 1969 K.L.R. 922., did not actually place any reliance on the report of the Public Analyst because it actually found’ that there was no such facts to go by. 21. The matter has been considered in a catena of decisions of various High Courts. It has to be noticed that English law does not give any such superiority to the report of the higher scientific authority. But, Indian law makes a departure. This has been explained in Municipal Corporation of Delhi v. Chisa Ram I.L.R. (1965) 1 Punj. 545. In another decision of the Punjab and Haryana High Court in Municipal Committee, Amritsar v. Amrit Singh (1971) 73 Punj.L R. 796. it has been observed that it would not be correct to say that there was variation between the report of the public analyst and the certificates of the Director since the report of the Public Analyst stood completely wiped out by the certificate. it has been observed that it would not be correct to say that there was variation between the report of the public analyst and the certificates of the Director since the report of the Public Analyst stood completely wiped out by the certificate. Similar is the stand taken by the High Court of Gujarat in Kantilal Ambalal and another v. I.G. Patel and another (1973) F.A.C. 29 and in F. B. Shukla v. Prakash Vishandas and another 1973 F.A.C. 176: (1973) 14 Guj.L.R. 381. by Punjab and Haryana High Court in Municipal Committee, Tullundur v. Kashmiri Lal (1975) 1 F.A.J. 233. and in Municipal Committee, Amritsar v. Shadi Lal 1975 Cr.L.J. 915: 1975 Cur.L.J. 109: (1975) 2 F.A.J. 411 by Bombay High Court; in Hariram Balram Pande v. State of Maharashtra 1977 F.A.J. 470: 1977 Mah.L.J. 80; 1977 Crl.L.J. 383, by Gauhati High Court in Tezpur Municipal Board v. Mohanlal Tibriwal and another 1977 Crl.L.J. 1353 and in J.L. Roy v. Amrit Lal Dey and another (1980) 1 F.A.C. 30: 1980 Crl.L.J. 24: 1980 F.A.J. 223. and by Orissa High Court in Bichitrananda v. State of Orissa 1978 Crl.L.J. 1050: (1978) 45 C.L. T. 369. 22. This Court in State of Kerala v. P.K. Chamu 1975 K.L.T. 411. and in State of Kerala v. John 1978 K.L.T. 738. has held that report of the Public Analyst is superseded by the certificate issued by the Director of Central Food Laboratory. In the former case Kader, J., observed that it is not possible to take into account the report of the Public Analyst where a certificate from the Director of the Central Food Laboratory has subsequently come on record in accordance with the provisions of section 13 and consequently it would not be correct to say that there was variation between the reports of the Public Analyst and the Director. That is because the report of the Public Analyst stands, completely wiped out A Full Bench of this Court had referred to this question in State of Kerala v. Vasudevan Nair 1974 K.L.T. 617.. In paragraph 9 of the leading judgment, delivered by Narayana Pillai, J., it is stated thus: “9. If in respect of the same article there is the report of the Public Analyst and the certificate of the Director of Central Food Laboratory the latter should, to the extent it goes’, supersede the former. In paragraph 9 of the leading judgment, delivered by Narayana Pillai, J., it is stated thus: “9. If in respect of the same article there is the report of the Public Analyst and the certificate of the Director of Central Food Laboratory the latter should, to the extent it goes’, supersede the former. If, in respect of it, there are more than one report of the Analyst and they conflict with each other regarding material particulars, error in calculation or in isolation may be possible and the accused can be given the benefit of doubt. That can be done if there are more than one certificate by the Director of Central Food Laboratory and they conflict with each other in material particulars also. But where there, is only one report or one certificate there is no warrant for the assumption about inaccuracy in any detail: mentioned in it or regarding error in calculation or isolation at the stage of analysis.” 23. It can thus be seen that it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions, there is some difference in the results of the two analysis. Even in cases where sampling and analysis is done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But, once the report of the Public Analyst is superseded by the report of the Director of the Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director. The Court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of sub-sections (3) and (5) of section 13 of the Act. The learned trial Magistrate, who rested the acquittal of the respondent on the so-called divergence in the report of the Public Analyst and the Certificate of the Director, has committed a serious act of judicial indiscipline. The learned trial Magistrate, who rested the acquittal of the respondent on the so-called divergence in the report of the Public Analyst and the Certificate of the Director, has committed a serious act of judicial indiscipline. Even the observations in Abdul Harmed v. Food Inspector 1969 K.L.R. 922 do not help the respondent. 24. Sri Rama Shenoi raised a contention to the effect that in a mass of ice cream, different parts will have different composition and as such the standard of different parts may not satisfy the standard fixed by the Rules. In such circumstances, according to the learned Counsel, to expect the sample to conform to the statutory standard would be to expect an impossibility. Law, it is said, does not expect the impossible to be performed. The argument flies in the face of the Act and the Rules. The Act and the Rules expect ice cream sold by a vendor to conform to the prescribed standard. If that is, impossible of achievement, the Rules would not have laid down any such standard. There is also no evidence to show that what is expected is an impossibility. Even according to the learned Counsel, the “impossible” is rendered “possible” if the mass of ice cream is cut sectionally; the respondent could very well have dona so. There is no case that he was prevented from doing so. I am not satisfied that the respondent was expected to do the “impossible”. 25. Thus, I hold that the two grounds on which the learned trial Magistrate proceeded to acquit the respondent are wholly untenable and perverse. The acquittal of the respondent, therefore, deserves to be and is hereby set aside. However, I do not want to straight away convict the respondent without giving him an opportunity to urge other contentions available to him. For this purpose, the case is sent hack to the file of the Chief Judicial Magistrate, Ernakularn, who, on the basis of the evidence already recorded, will hear further arguments if any and dispose of the case in accordance with law. The criminal appeal is allowed as indicated above. M.C.M. ----- Criminal appeal allowed.