STATE OF MAHARASHTRA Vs. PURSHOTTAM MOTILAL

JUDGEMENT

(1.) The respondents in this case were prosecuted for the offence under Section 16 (1) (a) (i) read with Section 2 (i) (1) and Rule 5A-05-05-01 of Prevention of the Food Adulteration Act. It was alleged by the prosecution that the chilly powder seized from the shop of the accused was adulterated. However, foJIcwing the decision of the Supreme Court in Raja- Ida vs. State of Maharashtra A. I. R. 1975 S. C. 189, in which it was held by the Supreme Court that the provisions of rule 22 are mandarory and as the quantity purchased by the Food Inspector, was less than what is prescribed by the Rules, the learned Metropolitan Magistrate acquitted the accused persons of the charges levelled against them.

(2.) Being aggrieved by this ordar of acquittal the State has filed the present appeal against acquittal. Initially the matter was placed before single Judge, Sawant J. who has referred it to the Division Bench and that is how the matter has been placed before us. It appears that before Sawant J. the respondents weie not represented. A question was raised before Sawant J. as to whether chilly powder is "spices" within the meaning of item 17 or foods (not specified within the meaning of item 37 or the iteams of food mentioned in Rule 22 of the Prevention of food Adulteration Rules, 1955. The decision of Padhye J in Criminal Appeals Nos. 1032 and 1033 of 1973- Vithal v. State of Maharashtra-deciced on 'l7th and 2uh of March 1975 was cited before the learned single Judge. The learned single Judge was also informed tnat Sapre J. in one of his judgments has followed the said decision. However, the copy of tne said decision was not produced before him. As the learned Judge did not agree with the said view and thought that the point is likely to arise very often he has referred the matter to Division Bench. An additional ground was given that in any case after the decision of the Supreme Court in State of Kerala etc. v. Alassery Mohammad etc. AIR 1978 S C 933 the matter will have to be sent back for re-trial on several issues even if the accused fails on the points argued. When tne appeal was placed before us for hearing, apart from the aforesaid decision of Psdhya J . Mr. Chitnis has relied upon the decision of Sapre J, in Criminal Appeal No. 325 of 1974- Jayantilal Kuver ji v State decided on 18- 11- 1975, the decision of Apte J in Criminal Revision Application No. 223 of 1975 decided on 13-11-75 Pokhraj Badrinarayan v. State, the decision of Shimpi J. in Criminal Appeal 815 of 1974 decided on 25.3.1976 decided on 25.3. 1976State v Vardhman Trading Co. as well as the decision of Delhi High Court reported in Hans Raj v The State 1877 Cri. Law Journal 92.

(3.) On the other hand Mr. Barday, learned public prosecutor has relied upon the decision of Gujarat High Court in Kantiial Damodardas v. The State Vol XVII (1976) Gujrat Law Reporter 666. However, during the course of argument both the learned Counsel agreed that it is not necessary to decide this question in this appeal because admittedly the accused is entitled to an acquittal as the mandatory Provisions of Rule 17 are not complied with, in this context a reference was also made to the decisions of thiscouit viz Criminal Appeal No. 698 of 1976 State v. Ramkaran Ganpatlal and Criminal Revision Application No. 531 of 1977 Mohammad Ismail and another v G D Deo and another decided on 12thJuly 1978 by Jahagirdar J. as well as the decision of Kotwal J. in Criminal Appeal No 545 of 1976State etc. v. Mallu Rama decided on 4th September 1978. In view of the admitted position that the mandatory provisions of Rule 17 are not complied with and on that count the accused is entitled to acquittal, in our opinion it is not necessary to decide the wider question, which is wholly academic, so far as the present appeal is concerned.