STATE OF MAHARASHTRA Vs. SHRIRAM HOTEL

JUDGEMENT

(1.) The respondents in this appeal (hereinafter referred to as the accused) were prosecuted at the instance of the Food Inspector of Poona in Criminal Case No. 83 of 1974, before the Judicial Magistrate, First Class, at Daund. In town of Daund accused Nos. 2 and 3 are carrying on the business of a restaurant which was joined as accused No. 1 in the trial Court. On 18th August, 1973 the Food Inspector purchased, among other things, 600 grams of Jilabi from the accused. One-third of the same, namely, 200 grams of Jilabi was sent to the Public Analyst who reported that the sample was adulterated inasmuch as it contained a non-permitted coal tar dye. (metallic yellow).

(2.) On these facts, the accused were prosecuted as mentioned above. The learned trial Magistrate by his judgment and order dated 13th November, 1975 acquitted the accused mainly on one ground that the quantity which sent to the Public Analyst was not in compliance with what he regarded as the mandatory requirements of Rule 22 of the Prevention of Food Adulteration Rules. There was no difficulty in regarding Jilabi as an Article of prepared food. It was so, then it was covered by Item 14 of Rule 22 as it then stood. The rule required that approximately 500 grams were required to be sent to the Public Analyst. Admittedly in the present case only 200 grams were sent. The learned trial Magistrate relying upon the judgment of the Supreme Court in (Rajaldas G. Pamnani v. State of Maharashtra) A.I.R. 1975 S.C. 189, felt obliged to acquit the accused.

(3.) The State has challenged this order of acquittal mainly relying upon the subsequent decision of the Supreme Court which has re-interpreted Rule 22 and has held that the requirements of Rule 22 are directory and not mandatory. This decision of the Supreme Court in (The State of Kerala v. Alasserry Mohammad) A.I.R 1978 S.C. 933. Mr. Hudlikar, the learned Public Prosecutor appearing in support of the appeal, has naturally relied upon this judgment and has contended that prosecution should not fail it that the quantity sent was not shown to be insufficient for a proper analysis by the Public Analyst. A proper reading of the judgment of the Supreme Court, says Mr. Hudlikar, leads one inevitably to the conclusion that if the Public Analyst has found it fit to analyse the sample without finding the quantity insufficient, then the result of the analysis made by him and as embodied in the report sent by him should be accepted. On the other hand it has been contended by Mr. Khatal-Patil that the judgment of the Supreme Court in Alassery Mohammeds case does not give a blank power to the Food Inspector to send any quantity that he likes. The fact that certain quantity is mentioned in Rule 22 is sufficient warrant for holding that some quantity near about the quantity mentioned in Rule 22 must be sent by the Food Inspector to the Public Analyst. Mr. Khatal Patil also sought to support the order of acquittal by pointing out that what this Court has held to be the mandatory requirements of Rule 17 have not been complied with by the Food Inspector in the instant case.