D.R. Khanna, J. - (1.) This revision is directed against an order dated 16-2-1977 of Shri .B.N. Chaturvedi, Metropolitan Magistrate, Delhi; whereby Darshan Lal and two others, who were being prosecuted under section 7/16 of the Prevention of Food Adulteration Act, were discharged. It was observed that the sample of 600 gms. of besan which the Food Inspector had collected from their premises on 7-1-1974, fell short of the minimum prescribed requirement of 750 gms. The same was, therefore, held as violating Rule 22 framed under the Prevention of Food Adulteration Act. It appears that in doing so, the trial court relied upon the decision of the Supreme Court in Rajal Das v. State of Maharashtra, 1975(1) F.A.C. 189, wherein it was observed that Rule 22 was mandatory and its breach would cause prejudice to the accused.
(2.) As this Criminal Revision has come up for hearing before this Court, the Supreme Court has by a larger bench in the case of State of Kerala v. Allaserry Mahammad etc., 1978(1) F.A.C. 145 , held that Rule 22 has to be treated as directory. It was observed that it is for the Public Analyst to opine whether the short sample so taken prevents him from carrying out the analysis. In case the Public Analyst finds the sample sufficient for doing so and gives his report, no prejudice can be said to be caused to the accused. It is only in cases where the short sample is not considered sufficient to carry out the analysis that the accused person may be entitled to discharge.
(3.) During the hearing of this revision, two-fold arguments have been addressed from the side of New Delhi Municipal Committee. Firstly, it is contended that the sample of 600 gms. taken by the Inspector, was in accordance with the requirements of Rule, and, therefore, it could not be said that the quantity thereof was in any manner short. In this regard, reference has been made to a decision of this Court in the case of New Delhi Municipal Committee v. Ram Lal & others, 1977(1) F.A.C. 237. It was held that 600 gms. sample of basen should be considered as sufficient for the purpose of analysis under the Prevention of Food Adulteration Act. Secondly, it is urged that when the subsequent decision of the Supreme Court in the case of State of Kerala v. Allaserry Mohammad (supra) has come, and there is no finding by the Public Analyst that the sample sent to him was not sufficient for carrying out the analysis, the discharge cannot be sustained.;