- (1.) KUNDAN Singh, J. Heard learned counsel for the parties.
(2.) THIS appeal has been preferred against th_ order of acquittal dated 7. 6. 1977, passed by Sri A. U. Khan, the then Additional Chief Judicial Magistrate, Agra in a case under section 7/16 Prevention of Food Adulteration Act. Sri R. N. Chaturvedi, Food Inspector, purchased 600 grams of chana on 7. 5. 1974 at 9. 30 AM. on payment of price and it was divided in three parts; one sample was given to accused, second to Public Analyst and the third was retained in the office of Nagar Swasth Adhikari. The record of the lower Court has not been received. In this appeal a legal question has been raised. Learned Counsel for both the parties are agree that the appeal can be decided without lower court record of this case. Before the learned Magistrate a legal point was raised that only 600 grams of chana was taken as sample whereas the quantity prescribed was 750 grams and that was in compliance of Rule 22 of Prevention of Food Adulteration Act. The learned Magistrate considered the Rule 22 as Mandatory and taking less quantity than prescribed, resulted in failure of justice and the accused was acquitted from the charge leveled against him.
(3.) THE learned counsel for the appellant contended that Rule 22 of Prevention of Food Adulteration Act is directory and not mandatory and he has also relied on the case of five judges decision of supreme court, State of Kerala v. Alassary Mohammed, reported in 1978 (1) FAC 145 which reads as under: (i) Rule 22 is directory and not mandatory. It has also been observed that Rule 22b was added to the Rules in the year 1977 and was to the effect that the quantity of the sample sent for analysis shall be considered as sufficient unless the Public Analyst or the director reports is to the contrary. It was held that this new Rule only clarified the existing law without amending it and even without this clarification the law was very clear; (ii) If the quantity sent to the Public Analysist, even though it is less than that prescribed, is still sufficient and enables him to make a correct analysis, then merely because the quantity that was sent, was not in strict compliance with the rule, the result will not be a nullification of the report or obliteration of its evidentiary value; (iii) It however does not mean that it is open to the Food Inspector to violate the Rule. He should always be cautious in complying with the Rules as far as possible and should not send a lesser quantity of the sample than the one prescribed, to the Public Analyst unless there bfe a sufficient reason to do so. The latest position of the law acquitting the accused merely on the ground that the quantity sent to the Public Analyst was snort as compared to the one prescribed under the rules, and hence there was infraction of the provisions of law and injustice, is not a sound decision and on this basis alone, acquittal cannot be made.;