- (1.) K. Narayan, J. This appeal under Section 378 (4) Cr. P. C. is directed against the order dated 9. 8. 79 recorded by Addl. Chief Judicial Magistrate Agra in case No. 2670 of 1977.
(2.) THERE is practically no dispute about the issue involved in the appeal. It appears that according to Nagar Swastha Adhikari's complaint. Sri R. N. Chaturvedi, Food Inspec tor, has visited the shop of Narayan Dass at about 9. 00 a. m. on 19. 10. 74 and had purchased 450 grams turmeric for the purposes of analysis etc. The turmeric was divided in three parts and one part was sent to the Public Analyst and after report complaint was lodged against the opposite party. The learned Magistrate, however, recorded an order of acquit tal on two grounds. The first ground was that the turmeric was not a spice and for that matter, he referred to some decision, which could not be laid hands upon as there is not enough of reference in the judgment to the same. The other ground taken by the learned Magistrate was based upon the decision of the Supreme Court reported in Rajadasa Pamaani v. State of Maharashtra, AIR 1975 SC 189 wherein it seems to have been held that since the rules provided purchase of atleast 600 grams of the material for the purposes of analysis etc. the purchase of lesser bulk was breach of law and would make the accused entitled to acquittal. This decision of the Supreme Court has been overruled in the case of State of Kerala v. Allanarry Mohd. , 1978 (2) SCC page 386. The law laid down in this latter decision by a Bench of Five Judges is to the effect that Rule 22 of the Rules framed under the Prevention of Food Adulteration Act are directory and not mandatory and it was only for the public analyst and the Director to say that the amount sent to him was not sufficient for the purposes of analysis. The shortage in the amount, if any, was considered to be ineffective for the purposes of prosecution though it was observed and an impres sion was left for the concerned public servant to follow the rules as they are. The argument of the learned Counsel for the appellant has been that since the decision upon which ihe learned Magistrate has based his order of acquittal had been overruled, the correct position of law would be as has been enunciated by the latter decision of the Supreme Court, and consequently the order of acquittal would be bad. There can be no two opinions about the correct position of law being as enunciated by the Hon'ble Supreme Court in the later decision by the large bench. The important aspect to be considered in this case would be as to what would be the effect of such a change in judicial decision laying down the principle of law upon the decision already arrived at by the lower judiciary following the law as it stood enunciated on the particular day. The second aspect which is of equal importance would be as to whether it would be advisable or in the interest of justice to reopen the matter after a lapse of 17 years. There can be no doubt that the decisions of the Supreme Court as they stand on the particular day are binding upon all Courts of the country. When the learned Addition al Chief Judicial Magistrate sat in judgment on 9. 8. 77. The law is laid down by the Supreme Court was that this defect was fatal one for the purposes of prosecution. The learned Magistrate rightly followed it. It may be a matter of principle that the law is not altered by judicial decisions and the judicial decisions only interpret; but for the guidance of trial judiciary once that is done it has binding effect unless it is set aside by the competent Court itself or some higher Court if the decision is by the High Court.
(3.) CNE of the basic principles in the matter of appeal against acquittal is examination of the decision arrived at and to see if it was good decision on the date of it and the order of acquittal seems to be quite reasonable as on that day. Furthermore even if the change in the correct interpretations shown by the two decisions of the Supreme Court could be taken into account, there would be another question as to whether it would be proper to order re-trial. In this behalf, the entire horizon covering the wrong and development of law is to be kept in mind. The law in respect of Prevention of Food Adulteration has gone a drastic change since 1975. The accused respondents too will now have a right to send the other sample of the material for analysis and this material right of defence will in all probability stand denied now for the simple reason of lapse of time even dried turmeric cannot be retained without termite effect and in any case whether affects for such a long time. The offence is also not so heinous as to justify re-trial of the accused in the Court of law after lapse of 17 years.;