(1.) The present petition is a revision brought to set aside a discharge order passed by a Metropolitan Magistrate in respect of a prosecution under Sec. 7 read with Sec. 16 of the Prevention of Food Adulteration Act, 1954. The prosecution case was based on taking a sample of Lal Mirch powder which was claimed 10 be adulterated, but the Magistrate passed the order of discharge on the basis that the sample was only 450 grams divided into three parts of 150 grams each whereas it should have been 600 grams divided into three parts of 200 grams each. In other words, it was held that the quantity of sample taken was inadequate keeping in view Rule 22 of the Prevention of Food Adulteration Rules, 1955.
(2.) I may here state that Rule 22 has specified different quantities for different food products. In the case of species, entry 17 requires the sample to be of 150 grams, i.e., total should be 450 grams and in the case of unspecified foods, the entry would be No. 37, which requires a sample of 200 grams, the total quantity being three times this, i.e.. 600 grams. So, if a sample of Lal Mirch is taken, the quantity will have to be 450 grams if Lal Mirch is a spice, but in case Lal Mirch is not a spice but is some other form of food, then the sample will have to be 600 grams. There has been considerable controversy on this question leading to some decisions that Lal Mirch is a spice and also some other decisions in which it was held that Lal Mirch is a condiment and (therefore not a spice), and if that is so, the sample has to be 600 grams and not 450 grams.
(3.) In Rajalclas Gurunamal Pamanani Vs. The State of Maharashtra, 1975 (1) F.A.C. 1, the Supreme Court had held that Rule 22 is mandatory and any infringement regarding the quantities required to be taken by Rule 22 is fatal to the prosecution. By a subsequent judgment, the Supreme Court itself has varied this view in State of Kerala etc. Vs. Aiaserry Mohammed etc. 1978 (1) F.A.C. 145. In this case, it has been observed that Rule 22 states the quantities approximately and hence it will depend on each individual case as to whether the quantity of sample is adequate, and the quantity itself should not be taken to be mandatory. In other words, even if the sample is short, the infringement is not fatal to the prosecution except that if it is found that the sample is inadequate. This is my understanding of the second view.