RAMDAS BHIKAJI CHATJDHARI Vs. SADANAND

JUDGEMENT

(1.) This appeal by special leave is directed against a judgment of the Bombay High Court acquitting the respondents of the charge under S. 16 (1) (a) (i) of the Prevention of Food Adulteration Act. The respondents were convicted under S. 16 (1) (a) (i) of the Prevention of Food Adulteration Act and sentenced to 6 months' R.I. and fined Rupees 2,000 as modified by the Sessions Judge in appeal. The High Court accepted all the facts proved in the case and found that the confectionery drops sold by the accused to the Food Inspector by way of sample contained coal tar dye. The High Court however, acquitted the respondents only on the ground that under Rule 22 as it stood before the amendment required that the minimum quantity of 500 gms. of the sample seized should be sent for analysis. This rule was subsequently amended by Rule 22B. In fact as pointed by this Court in the case of State of Kerala v. Alassery Mohammed, (1978) 2 SCR 820, the amendment by Rule 22B was not really an amendment in the strict sense of the term but merely a clarification of what was really intended by the original Rule 22. The High Court however, on the basis of the decision of this Court in the case of Rajal Das Guru Namal Pamanani v. State of Maharashtra reported in (1975) 2 SCR 886 held that as the quantity of the sample sent to the Public Analyst was below 500 gms, therefore, the respondents were entitled to an acquittal on this ground alone. The High Court accordingly allowed the revision and acquitted the respondents. Thereafter the appellant obtained special leave of this Court and hence this appeal.

(2.) A few admitted facts may be mentioned here. In the first place the decision of this Court in Rajal Das Guru Namal Pamanani v. State of Maharashtra, (1975) 2 SCR 886 was reconsidered by a larger Bench of 5 Judges who overruled the aforesaid decision in the case of State of Kerala v. Alasserry Mohammed, (1978) 2 SCR 820 and held that Rule 22 was purely directory and must always be construed to have been so. It was further held that it was for the Public Analyst to say whether the quantity of the sample sent to him was sufficient or not for making necessary analysis. In view of the law laid down by the latest decision of this Court referred to above, it is obvious that the acquittal by the High Court was legally erroneous.

(3.) Learned counsel appearing for the respondents raised three points before us. In the first place he submitted that as at the time when the respondents were acquitted the previous decision of the Court reported in (1975) 2 SCR 886 held the field, it is not a fit case where we should exercise our discretionary powers under Art. 136 to set aside the order of acquittal particularly when the case was launched against the respondents as far back as 1971. Secondly it was contended that even though the previous decision of this Court was overruled by this Court in the case of State of Kerala v. Alasserry Mohammed, yet the previous decision was the law laid down by this Court under Art. 141 of the Constitution and, therefore, the judgment of the High Court was correct. As regards the first point we think that there is absolutely no substance in it. The later decision of this Court in State of Kerala v. Allasserry Mohammed has clearly decided the point of law against the view taken by the High Court and as a logical consequence thereof the acquittal of the respondents was wrong on a point of law. This appeal therefore is clearly concluded by the aforesaid decision and the question of our exercising discretion particularly in cases of economic offenders does not arise. The first argument is, therefore, overruled.