The report of the Public Analyst is superceded by the certificate of the Director of the Central Food Laboratory, and the expectation for food to conform to the prescribed standard is not an impossibility.

1. 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 S.7(1) and S.16(1A) (i) read with S.2(la) (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 (Pw.l) visited the hotel run by the respondent on 28-11-1977 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 pw. 2 and sampled the same in accordance with the Rules as per Ext. P6 mahazar, sent one of the samples to the Public Analyst, Trivandrum, who after observing the requisite formalities conducted analysis, of the sample and issued Ext. P9 report which showed the following:

Table:#1

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 per cent milk fat, 3.5 per cent protein and 36 per cent total solids. A copy of the report with the intimation under S.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, Ext. P11, showed the following:

The Director also gave his opinion that the sample is adulterated.

2A. The Food Inspector was examined as Pw.l and one of the attestors of the mahazar as pw. 2. Public Analyst was examined as pw. 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 in as much as the ice cream in the Can had not been stirred properly before taking the sample.

3. 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 homogeneity 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 sample 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 (AIR. 1978 SC.933) and in State of Kerala v. John (1978 KLT.738). Accordingly, the respondent was acquitted.

4. 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 Alotius Wilson v. Food Inspector (1980 KLT. 834) and in Food Inspector, Corporation of Cochin v. Hassan & another (1982 KLT. 941). Learned Public Prosecutor also contended that the report of the Public Analyst is superceded 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 respon