1. The only point that falls to be decided in these two appeals is as to the interpretation of Rule 22-A of the Prevention of Food Adulteration Rules, 1955, which were made under the prevention of Food adulteration Act 1954 (Central Act 37 of 1954). This question arises on account of a charge laid against the two accused persons involved in each of these appeals for the sale of adulterated arrow-root powder, which is an offence punishable under S. 16(1)(a)(i) of the aforesaid Act.

2. The Food Inspector of the Quilon Municipality visited the shop of one Raman Nair at about 11-45 a.m on 26-3-1970 and purchased from him three packets of arrow root power which is the case involved in Crl. Appeal No. 268 of 1971. The same Food Inspector visited the shop of one Koyakutty at about 4.15 p.m on 10-11-1969 and purchased six similar packets of arrow root powder which is the subject matter in the other appeal. Each of the packets purchased from Raman Nair and two of the six packets purchased from Koyakutty were separately closed, packed and sealed in three separate containers of which one container was sent to the Public Analyst, one handed over to each of the accused persons and the third was retained with the Food Inspector to be sent to the Court, if necessary to be transmitted for analysis by the Director of Central Food Laboratory under S. 13(2) of the Act if any legal proceedings are to be taken against the accused persons.

3. The Food Inspector issued Form VI notice, obtained a voucher and prepared a mahazar in the presence of the accused persons in each of the cases. The Public Analyst, on analysis of the sample, was of the opinion that the sample consisted wholly of tapioca starch (Manihot utiliesma)and was therefore adulterated. The report of analysis is Ext. P-4 in these cases.

4. The learned District Magistrate took evidence in the cases and after hearing both sides, came to the conclusion that in his opinion, notwithstanding the amended Rule 22-A of the Prevention of Food Adulteration Rules, if the Food Inspector did not mix up the contents of each of the separate packets purchased by him and then divided the whole quantity into three parts there would still be a failure to comply with the mandatory provision in S. 11(b) of the Food Adulteration Act, and accordingly he held that the prosecution must fail especially because of the ruling in Bhagwandass v. The State (AIR. 1962 Punjab 419).

5. The above conclusion was wrongly arrived at by the court below on a misinterpretation of Rule 22-A, S. 11 of the Act prescribes the procedure to be followed by the Food Inspector where the sample of food is taken for analysis and it requires that the sample taken is to be divided in to three parts then and there and these parts are to be marked and sealed in such manner as its nature permits. Clause (c) of sub-section (1) of S. 11 of the Act requires one of the parts to be delivered to the person from whom the sample is taken, another part to be sent to the Public Analyst for analysis, and the third part to be retained for production, if necessary, in case of a legal proceeding is taken, or for analysis by the Director of the Central Food Laboratory under sub-section (2) of S. 13 of the Act. It is on the basis of this provision with regard to the division of the sample into three parts that it is contended that there was non-compliance of Rule 22-A. In this regard Rule 22 may be seen. It requires the quantity of the sample of the food to be sent to the Public Analyst in respect of each of the articles of food specified in that Section. In the case on hand item 23 in Rule 22 described as “Foods (not specified)” is applicable as the arrow root powder as such is not specified as one of the items in Rule 22. Rule 22-A reads as follows:

“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 part of the sample”.

6. The above rule is seen to have been inserted by an amendment made on 17-11-1962 after the pronouncement of the judgment on 24-1-1962 in the case reported in AIR. 1962 Punjab 419. In that case the Food Inspector purchased three separate bottles of aerated water, each said to contain 12 oz. and one of these bottles was sent to the Public Analyst, the other two being dealt with according to the provisions of S. 11(1). The Punjab High Court held that the procedure adopted by the Food Inspector was clearly an improper and illegal manner of obtaining the sample since obviously the contents of three separate and distinct bottles may not be uniform. According to the rules which prevailed in Punjab, the approximate quantity to be supplied for analysis was said to be 20 oz. in the case of aerated water whereas each of the bottles sold to the Food Inspector contained only 12 oz. of aerated water. The aerated water so supplied was not mixed up by the Food Inspector. So the Punjab High Court made the following observation:

“This rule appears to be almost impossible to comply with properly as regards aerated waters which are not ordinarily sold in bottles containing more than 12 oz. each and often as in the case of Coca Cola, less and thus the minimum requirement amounts to the contents of more than one ordinary bottle. The sooner this omission in the rules is remedied the better it will be for all concerned.”

7. It is in pursuance of the above pronouncement by the Punjab High Court that the relevant rule 22-A is seen to have been introduced by an amendment.

8. The scope of Rule 22 can be seen from, “the approximate quantity of articles of food”, to be sent to the Public Analyst for purposes of analysis. Though Rule 22 uses the word “shall”, the specific mention of an approximate quantity therein minimises the mandatory force of the expression: the provision is only a means for securing the evidence of an expert witness. If the quantity furnished was adequate enough to render possible all the tests necessary and the expert was in a position to pronounce on the materials supplied, the short supply would not detract from the value of the evidence furnished by the analyst. It can never be stated as an absolute proposition that upon a lesser quantity than that prescribed in the rule, no proper analysis could at all be done. We are not at the question as to the required quantity which has to be sent to the Public Analyst in the case. The question is whether the Food Inspector is bound to break and mix up the contents of all the packets and divide the contents thereof into three parts or was he permitted under the rules to send each of those sample packets separately closed, packed and sealed in separate containers to the Public Analyst for purpose of analysis. The rule speaks for itself. In another decision in R.J Gujar v. Jamnadas Gopalji (AIR. 1970 Bombay 133) it was contended, on the facts of that case that the Food Inspector was not justified in asking the vendor to break open the sealed container having 2 Kg. of ghee for purpose of purchase of 450 gm. by the Food Inspector. It was revealed in that case that the Food Inspector wanted 450 gm. to be supplied to him out of a sealed container weighing 2 kg. of ghee. The ghee was manufactured and sold in packed tins by the Hindustan Lever Ltd., Bombay. On account of the failure of the vendor to supply the requisite quantity of 450 gm. which the Food Inspector required to be sent to the Public Analyst on the basis of rule 22, the vendor was prosecuted. It was in that connection that the interpretation of Rule 22-A came up for consideration. So in a given case if the contents of the container are less than or even equal to 200 gm. as is required in the instant case, it would be impossible to divide the contents of that container into three parts so as to make available to the Public Analyst a quantity sufficient for analysis and also a quantity sufficient to be retained, if necessary, to be sent to the Director of the Central Food Laboratory under sub-s. (7) of S. 13 and it may therefore be necessary to draw on the contents of another container in order to provide sufficient quantity of the food article. If Rule 22-A was not there, the accused might raise a defence that the different parts are not out of the same sample and it is clear that it is to meet such a contention that Rule 22-A appears to have been introduced by an amendment of the rule. It is also evident from the above rule that it is impossible to spell out from it a restriction on the power of the Food Inspector to purchase anything more than 200 gm. or insist upon the dealer to break open a sealed container and sell him a lesser quantity. Similarly, in the instant case it is not necessary to break and mix the contents of all the packets and divide them into three parts. On the contrary, on account of the introduction of Rule 22-A, in the case of sealed containers having identical label declaration, the contents of one or more such container shall be treated to be part of the same sample. The observation of the learned Magistrate that the failure of the Food Inspector to mix up the contents of all the packets purchased by him and then divide the whole quantity into three parts leads to a non-compliance of the mandatory provisions of S. 11(b) of the Act appears to be illegal, and consequently the interpretation of Rule 22-A is incorrect.

9. The point raised in these appeals is therefore found in favour of the appellant-Food Inspector that the provisions of Rule 22-A have been complied with so far as that rule does, not insist upon the breaking and mixing up the contents of all the packets in sealed containers having identical label declaration.

10. It may be understood that the conclusion arrived in these appeals will not, in any way, affect the merits of the case otherwise. The only point decided in these appeals is that there was no necessity for breaking up and mixing all the several packets purchased by the Food Inspector for purposes of analysis, and nothing more. Both parties will be at liberty to argue the case once again before the District Magistrate on the basis of the evidence already recorded, and the District Magistrate will dispose of the cases in accordance with law in the light of the conclusion arrived at in these appeals.

11. In the result, the orders passed in each of these cases under appeal are set aside and the cases are sent back to the District Magistrate, Quilon, for disposal in accordance with law.