JAYANTILAL KUNWARJI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is an appeal against an order passed by the Presidency Magistrate, 28th Court, Esplanade, Bombay, convicting appellant No. 1 (Original accused No. 1) under section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as ``the Act, and sentencing him to suffer rigorous imprisonment for six months and to pay a fine of Rs. 1,000/-, in default, to suffer rigorous imprisonment for further period of three months. Appellant No. 2 (Original accused No. 2), which is a partnership firm of which accused No. 1 is a partner, has been similarly convicted with the aid of section 17 of the Act and sentenced to pay a fine of Rs. 500/-.

(2.) Accused No. 1, who is a partner of accused No. 2 firm, deals in food articles at the premises of the firm. On November 24, 1972, Food Inspector Kubde (P.W. 1) together with Joshi (P.W. 2) visited the shop of accused No. 1. After disclosing his identity, he purchased 450 gms. of chilly powder from the shop. This was divided into three equal parts, one of which was sent to the Public Analyst for analysis. After receiving the report of the Public Analyst that the sample of the chilly powder in question was adulterated, the accused were prosecuted.

(3.) The principal submission made by Mr. Ganatra on behalf of the appellants is that there was violation of the mandatory provision of Rule 22 of the Prevention of Food Adulteration Rules, hereinafter referred to as "the Rules", and, therefore, the report of the Public Analyst could not be made the basis of the conviction of the accused. Rule 22 refers to the quantity of sample to be sent to the Public Analyst. The relevant items for our purpose are Item No. 17, which deals with spices, and Item No. 23 (as it stood prior to the amendment made in the Items in 1974, that is, on the date of the alleged offence), which is a residuary item and will be attracted only if particular article of food does not fall under the remaining specific items. In the case of an article of food falling under Item No. 17, the approximate quantity to be supplied to the Public Analyst is 150 gms. If the article of food can be brought only under the residuary Item No. 23, the approximate quantity to be supplied to the Public Analyst is 200 gms. It is not disputed before me that if the chilly powder, which is the article of food is our case, does not fall under Item No. 17, it can only fall under the residuary Item No. 23, that is, Foods (not specified). Admittedly the quantity sent to the Public Analyst in this case for analysis was 150 gms. The Supreme Court has laid down in (Rajaldas C. Pamnani v. State of Maharashtra) A.I.R. 1975 S.C. 189 that the non-compliance with the quantity to be supplied causes not only infraction of the provisions but also injustice. The quantities mentioned are required for correct analysis. Shortage in the quantity for analysis is not permitted by the statute. The requirements of Rule 22 are, therefore, mandatory. I have held in (Criminal Appeal No. 311 of 1974 (By State) with Criminal Appeal No. 392 of 1974) decided on November 12/13, 1975, agreeing with the view of my brother Naik in (Criminal Revision Application No. 49 of 1975 decided on August, 13, 1975) that though Rule 22 uses the word "approximate", a difference of 50 gms. or so cannot be called "approximate" and such a difference would amount to the provisions of Rule 22 being not complied with.