STATE OF U P Vs. PREM CHANDRA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 2 -12 -1977 passed by Mr. Bahar Hussain, the then Munsif Magistrate, Saharanpur in Criminal Case No. 104 of 1977 under Section 7/16 of Prevention of Food Adulteration Act. The learned Magistrate acquitted the accused holding that no case was made out.

(2.) THE main basis for the judgment of the learned Munsif Magistrate was reliance on the case of Kajal Das G. Pamanani v. State of Maharashtra : AIR 1975 Sc 189, where it was held that non -compliance with the quantity to be supplied for analysis not only caused infraction of the provisions but also injustice. The law does not permit shortage of quantity for analysis to be sent. This dictum held Rule 22 of the rules framed under the Prevention of Food Adulteration Act mandatory. This law was, however, overruled by a five Judges' Bench decision of the Supreme Court. It was considering three cases namely (1) the State of Kerala v. Alassray Mohammad (ii) State of Maharashtra v. Shantilal Kalidas Gujrati and (iii) Municipal Corporation of Delhi v. Hansraj. It is reported in the : AIR 1978 SC 933. Two points were made out; (i) Rule 22 is directory and not mandatory; (ii) If the quantity sent to the Public Analyst even though it is less than that prescribed, is sufficient and enables him to make a correct analysis, then merely because the quantity that was sent was not in strict compliance with the rule, it will not result in nullification of the report nor obliterate its evidentiary value. A note of caution was also appended and it was mentioned that it however does not mean that it is open to the Food Inspector to violate the rule. He should always be cautious in complying with the rules as far as possible and should not send lessor quantity of sample than what is prescribed unless there is sufficient reason for it.

(3.) IN the result, it will be necessary to send back the case by way of remand for re -disposal according to law. The learned Magistrate shall proceed with the trial of the case from the stage of arguments. Evidence that is already on the record, will be considered along with the report of the Analyst then the case shall be disposed of.