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(9) In cross-examination he admitted that the procedure of sampling laid down in the brochure was only for sampling generally and that no specific mention had been made for Hing or compounded Hing. On reading his entire evidence also we are left with the impression that he was only speaking generally and not with reference to Hing. He, however, agreed in answer to a question put by Court, that a sample not lifted according to the above mentioned method would not be a fully representative sample.

(15) Shri Bawa Gurcharan Singh, learned counsel for the respondent. also drew our attention to a case decided by the Queens Bench Division in Skeate v. Moore (reported in All India Prevention of Food Adulteration Cases 1975 at p. 315) (4). This case was decided under the provisons of Food and Drugs Act, 1955 which was the codification of the law pertaining to food and drugs. That was a case where the sampling officer employed by the local authority purchased six of the (Cornish pasties offered for sale for purposes of analysis. He divided the six pies into three lots of two each. One lot of two pies was sent to the Public Analyst for analysis; another he gave to the vendor (appellant) and retained the third for production in the court in case it was needed. The analysis of the two pies sent to the Public Analyst showed that the aggregate of meat in the two pies represented a smaller percentage of the total content of the two pies than the percentage required to be contained in a meat pie under the regulations, and it was on the basis of that analysis, which logically showed that one at least of the two pies analysed had been deficient in meat content, that the appellant was charged and convicted of the offence of selling a meat pie in contravention of the regulations. The procedure adopted by the sampling officer in taking six meat pies and treating them as a sample for the purpose of the Act, dividing them into three lots in the way he had done, was the only practical way of sampling meat pies; if that procedure was technically defective it would amount to the Meat Pie Sausage Roll Regulations, 1967 not being practically possible to be enforced. The Justices reached the conclusion, after referring to section 93 of the Food and Drugs Act of 1955, the relevant portion of Schedule 7 part I, and pointed out that the Court if it thinks fit and must, if asked to do so by cither of the parties, order that third part of the sample shall be subject to an independent analysis, and that this procedure presupposed that if not even precisely homogeneous the three parts of one sample should be fairly representative of the whole.

(18) The argument for the appellant in Skeate v. Moore was that the sample which was to be dealt with in accordance with the English Act must be cither co-extensive with the subject matter of the charge or must be a representative sample of larger entity to which the charge relates. Support was sought to be derived from the language of that Act (s. 108) which contained in more than one place reference !o the phrase 'proceedings in respect of an articls or substance sampled' which was held clearly to mean 'as article or substance sampled in accordance with the statutory procedure'. Bridge, .1. in Skeate v. Moore attempted a "rhetoric" question as to how the proceedings could be said to be in respect of "a substance sampled" if the proceedings related to part only of the sample taken ? The whole thing therefore rested on the language of section 108, which was thus construed. The provisions of the present Act in respect of sampling docs not seem to require the same kind of interpretation except to the extent that when such a homogeneous sample has to be taken when the nature of the article requires it should be so taken. In other words, the language of the Indian Act does not require mixing and division of sample in every case regardless of whether the nature of the article requires it or not.

(22) On the question whether what was sold was Hing fit for human consumption or whether it was as insecticide for agricultural purposes the finding of the trial Magistrate, as a fact. is against the respondent, Having heard the Seamed couinsel for the respondent fully, who took us through the entire evidence both for the prosecution and for the defense in this respect, we see no sufficient ground to come to a contrary conclusion, on this aspect. The question is not whether Hing cannot be used as insecticide, it could well be. It is not even a case of the price of Hing for human consumption being 10 times costlier than that used as insecticide. For 300 gms a sum of Rs. 3 had been paid to the respondent as demanded by him which works out to about Rs. 10 per kilogram. Even according to the defense evidence Hing, as insecticide, costs about Rs. 4 to 5 per kilogram. It has not even been explained by the respondent why he still charged at twice the rate of the price of Hing that is usually chargeable for Hing to be used as insecticide. When a Food Inspector asks for a sample of Hing it is to be normally assumed that he is asking for a sample of Hing fit for human consumption. If it was not so the person selling would naturally point out to the Food Inspector that it was not fit for human consumption but only for use as insecticide in agriculture. In none of the documents contemporaneously prepared at the time of taking the sample was any reference made to the sample of Hing being used as an insecticide in agriculture. If such a representation had been made or, as it was suggested, a board had been put up that it was not fit for human consumption the Food Ins- pector himself would not have gone to the respondents place of business and asked for the sample; even if lie had done so without looking at the board, which is said to exist, he would have been told by the respondent that the sample of Hing was not fit for human consumption and surely he would have made a record of that in the document (s) which he signed in this connection under section 10(9) he would incur penal consequences if he acts vexatiously and without reasonable grounds. Even in the statement which the respondent made when examined under section 342 Criminal Procedure Code . he did not say that he had sold the sample of Hing as one not fit for human consumption but only for use as insecticide in agriculture. If this was so he would have said so during his statement. Instead we find that only a random suggestion was made to the Food Inspector in the course of crossexamination. This was not even followed up by the accused/respondent in his statement under section 342 Criminal Procedure Code . He had then said that the premises from where the sample was taken was godown and that it had not been kept there for sale. This is totally different from saving that it had been kept there not for human consumption but only for sale as insecticide in agriculture. The learned triai Magistrate was, therefore, perfectly justified and correct in rejecting the defenco version that the sample of Hing was sold not for human consumption but for use as insecticide in agriculture.