JUDGMENT V.P. Mathur, J. - This appeal is directed against the order of acquittal made by Mr. K.P. Mathur, Special Judicial Magistrate, Allahabad, on 10-2-1978, in case No. 1815 of 1977. At the instance of the Nagar Swasthya Adhikari, Allahabad, Shri Nath was facing trial on the charge under 7(1)/16(1)(a)(i) of the Prevention of Food Adulteration Act. The judgment of the learned Magistrate shows that he based it solely on the interpretation of Section 11(1)(b) of the Act and came to the conclusion that there was non-compliance of this mandatory provision of law and for that reason he directed the acquittal of the accused-Respondent. Section 11(1)(b) of the Act may be quoted as below:- "11. Procedure to be followed by Food Inspectors:- (1) when a food inspector takes a sample of food for analysis, he shall- * * * (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 and take the signature or thumb impression of the person from, whom the sample has been taken in such place and in such manner as may be prescribed. 2. The learned Magistrate appears to be of the view that the Food Inspector should collect the whole bulk of the sample in one container and then should divide it into three parts, place it further in three phials and then seal or fasten up each part according to law. What has been done in this case is that the Food Inspector took samples in three instalments in three different phials. In other words, he did not take sample at one go and divide it into three parts and instead he took three samples from the same can. The learned Magistrate appears to be of the view that it was illegal and against the rules. The law, however, only lays down that the samples have to be divided into three parts and marked and sealed or fastened up according to the rules. The learned Magistrate appears to be of the view that it was illegal and against the rules. The law, however, only lays down that the samples have to be divided into three parts and marked and sealed or fastened up according to the rules. A similar case but in respect of mustard oil came before this Court in the matter of Bankey v. State 1979 (1) Prevention of Food Adulteration Cases 319 A similar argument was advanced in that case and it was held: "I am unable to appreciate this argument, whether the sample is taken once and divided into three parts from a tin of mustard oil or three phials are dipped in the same mustard oil one after the other and samples are taken separately, is of no consequence because under Section 7 of the Act, if food sold to the Inspector is proved to be adulterated, it is of no consequence... In my opinion, it would be sufficient compliance of the law if a sample is taken from the suspected adulterated article of food and divided into three parts or three times three separate phials are dipped in the same article of food and properly marked and sealed." 3. Since it is undisputed that there was a single can of milk from which samples were taken, it will make no difference whether the sample is taken and then is divided into three parts and separately sealed and fastened or whether three samples are taken in three separate phials and then sealed and fastened. A somewhat similar case came up before the Bombay High Court in the matter of S.G. Chandamane v. Tamijuddin 1979 (1) PFA 230 and the observation made was that it is not suggested that the contents of the larger container changed every time with a part of contents that was taken out. His Lordship was even of the view that the stand taken by the learned Magistrate was not only opposed to common sense but was perverse. 4. In my opinion, the order of acquittal which is solely based upon the misinterpretation of Section 11(1)(b) of the Prevention of Food Adulteration Act, 1954 cannot be sustained and will have to be set aside. The learned Magistrate has not dealt with other points raised in defence and It is necessary that a clear and proper trial is made. 5. In my opinion, the order of acquittal which is solely based upon the misinterpretation of Section 11(1)(b) of the Prevention of Food Adulteration Act, 1954 cannot be sustained and will have to be set aside. The learned Magistrate has not dealt with other points raised in defence and It is necessary that a clear and proper trial is made. 5. In the result, the appeal is allowed. The order of acquittal passed on 10-2-78 is set aside. The case shall go back to the Chief Judicial Magistrate, Allahabad, who will decide it himself or have it disposed of by some other competent Magistrate. No additional evidence shall be accepted on record. The learned Counsel on both sides will be given a hearing and then the case shall be disposed of and all the points raised shall be considered and a finding shall be recorded. 6. The learned Magistrate shall take steps to summon the accused and then give him a date for hearing.