Judgment: 1. The Food Inspector of Alwaye Municipality (Pw. 1) visited “Pulpattu Stores” at Alwaye on 22-1-1981 and took a sample of 600 gms. Of “coffee chicory mixture” from the salesman of the store (A2). The food article purchased was contained in 51 packets. Pw.l divided the packets into three parts, each part comprising of 17 packets. He wrapped them and sealed them in accordance with the Rules, When one of the parts of the sample was analysed by the Public Analyst, if was found that the sample did not conform to the standards prescribed for coffee chicory mixture. “A complaint was filed against the proprietor of the shop (Al) and salesman of the shop (A2). The dealer who is alleged to have sold the aforesaid food article to the vendor was shown as A3 in the complaint. The case was tried as against all the three accused, but the Magistrate on conclusion of the trial acquitted them. Hence this appeal by the Food Inspector with leave granted by this court. 2. The Report of the Public Analyst shows that the sample was adulterated as it did not conform to the standards prescribed in respect of two constituents, coffeine and aqueous extract. There was only 6.2 percent coffeine as against the minimum requirement of 0.6 per cent. But aqueous extract was found to be 52,6 per cent as against the maximum of 50 percent permitted by the prescribed standards. (Vide item A.08.03 of Appendix B of the Rules). In the light of the aforesaid report of the Public Analyst no contention was raised that the sample was not adulterated. 3. The acquittal of the accused was on two grounds. The first is that the sample was not divided by the Food Inspector in accordance with S.11(1) (b) of the Prevention of Food Adulteration Act, 1954 (for short ‘the Act’) inasmuch as he did not mix the contents of the 51 packets before dividing the sample into three parts. The second is that the Local (Health) Authority did not forward a copy of the report of the Public Analyst immediately after the institution of the prosecution as required under Rule 9A of the Prevention of Food Adulteration Rules (for short ‘the Rules’). 4. The prosecution was instituted on 14-5-1981 but the Local (Health) Authority had forwarded the documents contemplated in S.13(2) of the Act only on 16-5-1982. 4. The prosecution was instituted on 14-5-1981 but the Local (Health) Authority had forwarded the documents contemplated in S.13(2) of the Act only on 16-5-1982. The delay of two days was found to be in contravention of Rule 9 A. One this aspect, the learned counsel for all the accused conceded that there is no contravention of Rule 9 A in the light of the interpretation of said Rule made by this Cout in Food Inspector v. Prabaharan Food Inspector v. Prabaharan 1982 K.L.T. 809. 5. The arguments were mainly focused on the other ground that division of the sample was not in accordance with S.11(1)(b) of the Act. Pw. 1 admitted that he did not mix up the food article purchased by him before dividing it into three parts, nor did he even open any one of those packets. For appreciating the augments or Sri.Rama Shenoy, counsel for the third accused, mention is to be made of one more fact When the food inspector purchased the article none of the packets was found sealed, nor did any one of them contain any label declaration. What Pw. 1 did was, he divided 51 packets into three parts, each part consisting of 17 packets and wrapped and sealed each part in accordance with the rules. 6. S.11 of the Act is entitled “Procedure to be followed by Food Inspectors”. S.11(1) (b) of the Act reads as follows: “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 it 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.” It is clear from a reading of the said provision that a food inspector who take a sample of food for analysis cannot but “divide the sample” into three parts, unless it is a special case provided by rules. It is true that it is not stated either in the Act or in the rules that the food inspector shall mix up the sample before dividing it into three parts. It is true that it is not stated either in the Act or in the rules that the food inspector shall mix up the sample before dividing it into three parts. The statutory direction to be observed while dividing the sample is that the division shall be “in such manner as it nature permits” Rule 15 governs the manner of sending samples for analysis. It enjoins on the food inspector to take the sample in clear dry bottles or jars or in other suitable containers. Thus a food inspector cannot avoid or obviate the task of dividing the sample, since, it is a statutory mandate, except in certain special cases provided by rules. Division of the sample, therefore, must have a purpose. The postulation is not that the food inspector shall pack the sample in three parts but that he shall “divide” the sample into three parts. Before the sample of food goes into three parts, it shall pass through a process of division. In this connection, a reference to Rule 22A will indicate that the delegated legislative authority was very circumspect in providing a special exception to the statutory requirement That rule reads thus: “Where food is sold or stocked for sale or for distribution in sealed containers having identical label declaration, the contents of one or more of such containers as may be required to satisfy the quantity prescribed in Rule 22 shall be treated to be a part of the sample” The said rule undoubtedly is a special case exempted from the requirements mentioned in S.11(1)(b) of the Act. What could be the legislative idea in exemption food articles kept in sealed containers having identical label declaration from the necessity of division? The answer can be partly gathered from Rule 32. The rule mentions about various specifications for labels. The name, trade name or description of the food, name and business address of the manufacturer, the net weight or number, batch number or code number, and the month and year in which commodity is manufactured are some of those specifications which rule 32 insists for being inscribed on the labels, though the said specifications are also subject to some exceptions. The reasonable assumption is that packets or containers having identical label declarations proclaim that the contents in each of such packets or containers is identical with the other. The reasonable assumption is that packets or containers having identical label declarations proclaim that the contents in each of such packets or containers is identical with the other. When food packed in such containers is purchased by a food inspector, no additional purpose is served by mixing the contents of such containers together. Even without mixing them up the contents in each such container can be presumed to be homogeneous of the other. 7. Rule 22A has a history behind it which accounts for its introduction that rule was first inserted in the rules on 17-11-1962. When there was no such rule, the Punjab High Court had to decide a case in which a food inspector purchased three labelled bottles of aerated water from a vendor, which no analysis was found to be adulterated. The decision of the Punjab High Court was reported in Bhagwandass v. State Bhagwandass v. State A.I.R. 1962 Punj. 429. Falshaw, C.J., who delivered the judgment in the case held that the sampling was illegal and improper since contents of three separate and distinct bottles may not be uniform. The learned Chief Justice observed further that: “It is of the utmost importance to ensure that the three samples are of uniform quality; otherwise the whole value of the check and countercheck is completely lost It is not in dispute that the rules framed under the Act do not provide for any special cases as mentioned in S.11(1)(b), but this is clearly an omission which requires to be rectified without delay. Obviously it is necessary to make some provisions for dealing with articles of food which are packaged in quantities too small to be divided into three parts as that each part will provide the minimum required for Analysis in accordance with the provision of Rule 22”. The aforesaid observations of the learned Chief Justice gained legislative notice and introduction of Rule 22A was its offshot. The said rule is intended to be an exception to the insistence envisaged in S.11 (I)(b) that the sample taken shall be divided into three parts. The commencing words in the said clause “except in special cases provided by rules” indicate that the Food Inspector has no alternative except to divide the sample into three parts. No other rule has been brought to my notice, other than rule 22A. Thus the purpose behind such division is discernible. The commencing words in the said clause “except in special cases provided by rules” indicate that the Food Inspector has no alternative except to divide the sample into three parts. No other rule has been brought to my notice, other than rule 22A. Thus the purpose behind such division is discernible. Apart from providing opportunity for check and counter check it is intended to make each part of the sample homogeneous and representative of the other. It is so emphasised by the Supreme Court in Food Inspector v. Madanlal R. Sharma Food Inspector v. Madanlal R. Sharma 1983 S.C.C. (Crl) 171: A.I.R. 1983 S.C.176: (1983) 1 S.C.C. 135 . In that case the milk purchased by the Food Inspector. While taking the sample, was required to be churned for the purpose of making the sample homogeneous and representative. 8. The learned counsel for the appellant made a reference to the decision in Food Inspector v. Karunakaran Food Inspector v. Karunakaran 1973 K.L.T. 595. One of the head-notes in the said decision reads that “there are no provisions in the Act which in terms require that where articles are taken for analysis they should be mixed up before bottling”. But a reading of the decision shows that the contention raised on behalf of the respondents therein that there was likelihood of prejudice being caused to the accused inasmuch as it had not been proved that the sample was taken after mixing up the contents of ice cream in none cups, was rejected on the ground that the said contention was not even though of at the trial stage. The decision in A.I.R. 1962 Punj. 429 was cited in that case, but Bhaskaran, J. (as His Lordship then was) felt that it was not necessary to examine the correctness of the Punjab High Court's decision because the defence did not take up that point during trial stage. Therefore the decision in Food Inspector v. Karunakaran Food Inspector v. Karunakaran 1973 K.L.T. 595 is of no advantage to the appellant. 9. The counsel for the appellant also cited Chandmane v. Tamizuddin Chandmane v. Tamizuddin 1979 F.A.J. 392 and N.S. Adhikari v. Sri Nath N.S. Adhikari v. Sri Nath 1985 F.A.J.460. Milk purchased in three bottles from a can was not again mixed up and that was held to be not in violation of the provisions in S.11(1)(b). 9. The counsel for the appellant also cited Chandmane v. Tamizuddin Chandmane v. Tamizuddin 1979 F.A.J. 392 and N.S. Adhikari v. Sri Nath N.S. Adhikari v. Sri Nath 1985 F.A.J.460. Milk purchased in three bottles from a can was not again mixed up and that was held to be not in violation of the provisions in S.11(1)(b). On the same point a different view is seen adopted in certain other decisions, two of which were cited by Sri. Rama Shenoy Shaikh Hamid v. Dagu and another Shaikh Hamid v. Dagu and another (1979) 1 F.A.C. 334 and Daulat Singh v. State of M.P. Daulat Singh v. State of M.P. (1979) 2 F.A.C. 269. When milk is taken from one jar or can or other receptacle, it may not be necessary to mix it up again and divide. If milk can be taken in three bottles directly mix it up again and divide. If milk can be taken in three bottles directly form the same can, there is reason to assume that milk in each bottle will represent the other. So the decisions based on such facts may not help in deciding the question involved here. The learned counsel made reference to Municipal Corporation of Delhi v. Sunder Lal Municipal Corporation of Delhi v. Sunder Lal 1977 F.A.J. 1. In that case the Food Inspector took 300 grams of asafoetida and divided it into three and filled it in three bottle. The trial court acquitted the vendor as the Food Inspector did not grind the asafoetida before dividing them into three parts. But the Division Bench of the Delhi High Court, in appeal, found on facts that the entire sample purchased was broken into tiny pieces such as would not be possible to contend that any one sample was not fairly representative of the other. The said decision supports the proposition that each part of the sample must retain homogenuity and representative character. 10. In this case the Food Inspector, by putting 17 packets in each of the parts without opening those packets for mixing up the contents had not complied with the direction contained in S.11(1)(b) of the Act. The said decision supports the proposition that each part of the sample must retain homogenuity and representative character. 10. In this case the Food Inspector, by putting 17 packets in each of the parts without opening those packets for mixing up the contents had not complied with the direction contained in S.11(1)(b) of the Act. The non-compliance with the said direction has caused prejudice to the accused in this case, since the part of the sample sent for analysis need not have been homogeneous and representative of the whole lot of sample taken by the Food Inspector. For the aforesaid reason. I am not inclined to interfere with the order of acquittal. Appeal is hence dismissed. Appeal dismissed.