M C D Vs. NAND KISHORE

JUDGEMENT

(1.) THIS is appeal filed by the corporation against the judgment of the learned Magistrate by which he acquitted the respondents. Food Inspector took sample of chillies from the respondent on 12th June, 1975. He purchased 450 grams of it and divided into three lots. the trial Magistrate accepted the report of the Public Analyst that the chillies were adulterated. He also found that there was no serious challenge to the fact that the sample was taken from the respondent. He however acquitted the appellant by relying on the earlier Supreme Court's decision reported in Rajaldas Gurunamal Pamanani v. State of Maharashtra (1975 (1) FAC page 1), The court held that chillies will be covered under the residue item 37 under Rule 22 which provides for taking of sample of quantity. The court held relying on the case reported in 1975 F.A.C. 1 (supra) that Rule 22 was mandatory, and it had not been complied with, hence on this ground alone the respondent was entitled to acquittal. This view of the Supreme Court is now over ruled in the case of State of Kerala etc. v. Alasserry Mohammad etc., AIR 1978 SC 933) and M.C.D. v. Hans Raj and another, 1978(1) F.A.C, 145), where the view taken is that even where the quantity taken for analysis is less than the prescribed one, the case cannot fail on that ground alone. The public has not said that the sample was of the quantity on which Analysis could not be done. According to him, he analysed it and on that finding respondent should have been convicted, therefore, was wrong and it set aside. We, however, also find that through the learned Magistrate acquitted the respondent of selling adulterated chillies, he found him guilty for not having a licence in terms of Rule 50 of the Prevention of Food Adulteration Act. This part of the view of the learned Magistrate is not sustainable in view of the judgment in this court in M.C.D. v. Anil Kumar (1984 (II) FAC 203) wherein it has held that persons conviction, under section 16 (1)(a)(ii) on the basis of the same article of food which is found to be adulterated. Such conviction has to be set aside. There is no appeal by the respondent, and we would not after such a long lapse of time suo motu like to set aside the acquittal. But in view of the peculiar circumstances that the respondent has to be technically convicted under the former charge and acquitted in the late charge, it would be best course not to interfere in the matter in all. The appeal with the aforesaid observations is dismissed.