M B RISALDAR Vs. RADHESHYAM RAMDHAR

JUDGEMENT

(1.) The prosecution case is that on 15th February, 1971 at the restaurant of the accused which is known as Agrawal Restaurant, food inspector Manubhai A. Pandya purchased Jalebi prepared in oil. It is the prosecution case that the oil used in Jabeli was not according to the prescribed standard and, therefore, the accused was prosecuted.

(2.) The learned Magistrate acquitted the accused on two counts. One count was that the prosecution failed to prove that the public analyst was sent sufficient quantity of Jalebi to extract sufficient quantity of oil as per Rule 22 which says that 125 Gms. of edible oil shall be sent to the public analyst. This, the learned Magistrate held on the strength of the judgment of the Supreme Court in Rajal Das Pamanani v. State of Maharashtra, A.I.R. 1975, S C. 189, wherein it was held that the accused cannot be convicted unless sufficient quantity for analysis as laid down under Rule 22 is analysed. The second count was that there was no sufficient evidence to come to the conclusion that the jar or bottle in which the muddamal Jalebi was placed were cleaned and dried.

(3.) So far as the first count of acquittal is concerned, it is submitted by Miss Valikarimwala who appears for the appellant that the judgment is no longer a good law, because by a later judgment, viz. State of Kerala v. Alasserry Mohmmed, A.I.R. 1978, S.C. 933, this judgment in A.I.R. 1975, S C. 189 is over-ruled. It is the submission of Miss Valikarimwala that even otherwise, the requirement of sending the prescribed quantity of Jalebi is followed, and also it is for the public analyst to say whether he can analyse with the given quantity or not. This arguments was advanced by her mainly because on behalf of respondent No. 1, it was attempted to be shown that according to the evidence of the public analyst, Shri S. S. Bhatt, Ex. 37, even though the sample of Jalebi of the quantity of 500 Gms. was sent to him, which is in consonance with Rule 22, he had taken about 100 to 150 Gms. of Jalebi and it was powdered and then it was put in ethyl as it is the function of ethyl to separate oil from the other articles. It was, therefore, submitted that when only 100 to 150 Gms. of Jalebi powder might have been taken, how can there be sufficient quantity for analysis because oil available therefrom would be hardly about 25 gms to 50 gms. Unfortunately, no question is put to the public analyst as to how much quantity of oil was available. But even then, reading the judgment of the Supreme Court in the case of State of Kerala v. Alasserry Mohmmed, it is very clear that the quantity now becomes immaterial. What is necessary is that - whether it was possible for the public analyst to analyse the article or not. In this judgment, it has been specifically observed as follows :