P. Subramonian Poti, Ag. C.J.
1. This is an appeal by the Food Inspector of the Cochin Corporation against the acquittal of the respondents under Section 248(1) of the Code of Criminal Procedure. The Food Inspector filed the complaint before the Chief Judicial Magistrate, Emakulam charging the two accused with offences under Sections 2 (is), (m). 7(i) and 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954. The case was that on 26-5-1976 at about 1 P. M. the Food Inspector took a sample of ice cream by purchasing 900 grams from the quantity exposed for sale in hotel Blue Nile under the management of the first accused. Such purchase for sampling was made from the second accused. The sample, on analysis, was found to be adulterated in that it did not conform to the standards prescribed for ice cream under the Act. Though it is the second accused who actually sold the ice cream the first accused was sought to be made liable for the charge as a person running the hotel. On the evidence of the prosecution the learned Chief judicial Magistrate found that the second accused sold the sample of the ice cream exposed for sale in the hotel to P. W. 1 and also found that the sample was adulterated. The first accused though alleged to be in management of the business, was not according to the court below, shown to be a person in such management and therefore the case against the first accused should fail. On the question whether the ice cream sold for the purpose of sampling was adulterated notwithstanding that the analysis results showed that the ice cream was not of the specified standard (Ext. p 9 analysis certificate showed that the milk fat was only 2.7% and the milk protein was 3,2%, Ext. P 11 report of the Central Food Laboratory which superseded Ext. p 9 showed that the milk fat was 5.9% protein content as 2.8% and total solid 32.34%) a learned Magistrate found against the plea of adulteration for the reason that he was not satisfied with the manner in which the sample was taken, The one and the only reason was that the learned Magistrate was of the view that the proper procedure was not adopted in the matter of sampling. To quote the words of the Magistrate
Admittedly, for taking the sample P. W. 1 has not followed the proper procedure of vertically cutting the contents in the container and then removing the entire compartment and then stirring the portions so removed. On the other hand what he did was lust purchase the sample from the container and then stir and prepare the sample.
That the sample was taken from the ice cream container kept in a deep freezer is the case of p. W. 1. According to P. W. 1 after he purchased the sample he stirred the sample and dissolved it and bottled it. The learned Magistrate seems to disbelieve the case, for, according to him
It is difficult to believe the version of P. W. 1 that the ice cream taken from the deep freezer was stirred and dissolved by him, before it was duly sampled, for, it is too well-known that the ice cream in the deep freezer will be in a semi-solid state.
It is difficult to appreciate this reasoning, for once ice cream is purchased it could easily he stirred and poured into separate bottles for sampling. Any how the only reason which seems to have weighed with the learned Magistrate in finding that the sample was not adulterated notwithstanding the certificate, Ext. P 11 of the Central Food Laboratory is that he ought to have adopted the method indicated in the judgment when he purchased the sample. The method suggested is that ice cream must be cut vertically and the portion so cut and taken out should be stirred and then sampled, ft is the eor- rectness of this view that is mainly under challenge in this appeal.
2. Though the appeal concerns the first accused also, I may at the outset observe that there is no evidence to connect the first accused with the offence. There is no doubt (sic) a case for the prosecution that the first accused was in charge of the hotel and was running it. But no reliable evidence on which a court can act has been produced to connect the first accused and therefore the finding of the learned Magistrate that the first accused is not shown to be the man in charge of the business must necessarily be accepted. The appeal must fail as against the first accused.
3. That the second accused sold the ice cream is not in controversy. But what is said is that since ice cream was purchased for the purpose of taking sample of the ice cream in the container in the freezer the method adopted is not such as would render the sample taken really a representative sample. A representative sample, according to the court, would only be where the ice cream is purchased after treating it in the manner indicated in the judgment, viz, by cutting the middle portion vertically, taking it out, possibly melting it by stirring or otherwise, stirring it to make it uniform and then taking samples. Whether this method is necessary and practicable and in the absence of this method the prosecution should fail is a question of general interest, and this may recur in other cases concerning prosecutions alleging sale of adulterated ice cream.
4. That the second accused sold ice cream to the Food Inspector is not in controversy. It was 900 grams that was so purchased by the Food Inspector. It is common knowledge that when any customer goes to a restaurant and purchases ice cream for his consumption the entire block of ice cream is not removed, stirred or melted and portion taken. What is done is to cut a portion from the block of ice cream sufficient to meet the needs of the customer and supply that to him. Evidently that was what was done when the Food Inspector wanted to purchase 900 grams of ice cream for sampling. The sale to the Food Inspector was sale of ice cream. It was a sale of a portion of the ice cream available, a portion similar to what would have normally been sold to any customer visiting the hotel. That ice cream was found; not t conform to the standards prescribed for ice cream.
5. Now I am not at the question whether what was sold to P. W. 1 was a representative sample. To that I will advert later. I an now at the question whether that question would be relevant, If what was sold to the Food Inspector is seen to be adulterated, contravention of the provisions of the Act is proved. Based on the book 'Methods in Food Analysis' by Maynard A. Joslyn, it was contended before the Supreme Court in. State of Kerala v. Alassery Mohammad : 1978CriLJ925 that the sample taken by the Food Inspector must be a representative sample. Dealing with this the Supreme Court said in that decision thus (at p. 931 of Cri LJ);
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. 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.
My learned brother Kader J. had occasion to consider a similar argument in State of Kerala v. John. 1978 Ker LT 738 : 1979 Cri LJ NOC 48. The learned Judge referring to the various decisions observed thus:
This apart, the purchase of the sample of buffalow milk by P. W. 1 from the first accused, is clearly a sale within the definition of the word 'sale' under the Act. The decision relied on by the trial court has no application to the facts of the case. It is now well settled law and is also clear from the special definition of 'sale' in Clause (xiii) of Section 2 of the Act, that a purchase by Food Inspector for analysis is a sale under the Act. (See Food Inspector v. Chenkathil Gopalan : 1971CriLJ1277 , M. R. Ruparel v. State of Maharashtra : 1966CriLJ106 , State of U. P. v. Partar Singh : 1964CriLJ229 and Sarjoo prasad v. State of U. P. : 1961CriLJ747 . 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. 'A person who stores or sells such sample is liable to be punished under Section 16(1)(a)(i) of the Act.' (See State of Kerala v. Alassery Mohammad : 1978CriLJ925 and 940.' In the case before my learned brother Bhat J. in Alotius Wilson v. Food Inspector 1980 Ker LT 834 a contention similar to the one setud 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 Shenoj 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. Alasserry Mohammad : 1978CriLJ925 . 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 the question whether the sample taken by the Food Inspector is 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 food stuff 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. Ice cream is a commodity which is not expected to lose its shape and form when the sale is effected. Ice cream when liquefied is no longer treated as ice cream. It will not be taken by a customer 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 rule of representative sampling. It is surprising that the learned Magistrate should think of a method of vertical cutting of the ice cream, taking out the middle portion and stirring it to take a sample, perhaps the inspiration for this approach was the decision in Municipal Corporation of Delhi v. Ghisa Ram. ILR (1965) 1 Puni 543. A sample of curd was taken in that case. Relying upon the evidence of two expert witnesses concerning how sample of curd should be taken the court said in that case thus:
The learned Counsel for the respondent has further urged that in this case the sample of curd was not taken, in a proper manner. Both the expert witnesses are agreed that the proper manner and method of taking a sample of curd is that the set curd should be divided vertically and the entire one compartment should be taken, churned, and then divided into three pArticles There is no evidence that this was done in the present case.
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 be S 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 view be said of ice cream. If this explanation is not an explanation for the decision of the Pun-1ab High Court, with great respect, I mugt 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 to assume particularly in the background of what I have said here that sample of ice cream should be taken in. the manner indicated in the judgment of. the court below.
7. There is yet another argument raised by learned Counsel Shri Shenoi and that is based on Section 13(2) of the Act. According to counsel the Local Authority has, after the institution of prosecution against the person from whom the sample of article of food was taken, to forward a copy of the report of the result of the analysis to such person informing him that if it is so desired, he may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the local Health Authority analysed by the Central Food Laboratory. According to learned Counsel such notice though given to the second accused, has not been given to the first accused. The notice given to the second accused only showed the result of analysis and did not further state that the party may move to send the sample for further analysis to the Central Food Laboratory. Notice perhaps is not necessary to the first accused as he is not the person from whom the sample was taken. Now that question does not call for consideration because the first accused is acquitted and that acquittal is upheld. Notice was sent to the second accused. His complaint that it did not further state in terms of Section 13(2), that he can move the court to get the other sample kept by the local Health Authority analysed is of no sub- stance in this case because he did move for production of the sample in court, that wag produced pursuant thereto and was sent for analysis by the Central Food Laboratory. He understood the notice in that manner and acted accordingly.
In the result the second accused is found guilty of having sold adulterated food to the Food inspector. He is found guilty of the offence under Sections 7(i), 16(1)(a)(i) of the Prevention of Food Adulteration Act, read with Rule 44(a) Appendix B, A. 1102.0A of the Prevention of Food Adulteration Rules. He will be heard on the question of sentence. The case is posted for hearing on the question of sentence to 30-7-1981.