T.P.Garg, J. - (1.) This appeal by Nagar Swasthya Adhikari, Nagar Mahapalika, Agra (hereinafter referred to as the complainant) is directed against the judgement dated 25.7.77 passed by Sri A.U. Khan, Additional Chief Judicial Magistrate, Agra, whereby both the accused-respondents have been acquitted. Brief facts giving rise to the present appeal are as under:- The complainant-appellant filed a complaint under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) against Brijendra Singh and Sanwalia, respondents, on the allegations that on 22.7.1974 at about 3 P.M. Sri R.M. Chaturvedi, Food-Inspector visited the shop of the accused within the limits of Nagar Mahapalika, Agra and purchased 1000 grams of Barfi, an article of prepared food. he divided the purchased sample in three equal parts, sealed and labelled in the presence of the accused. One such part was given to the accused, while second part was sent to Public Analyst, Lucknow for examination and report, and third part was retained in the office of the complainant. The Public Analyst vide his report Ex.Ka-6 found the sample of Barfi adulterated, hence the complaint.
(2.) The evidence of Food Inspector was recorded. Thereafter, the arguments were heard and impugned order was passed mainly on the ground that there was no compliance with Rule-22 of the Rules framed under the Act in so far as the complainant purchased 1000 gms. of Barfi instead of 1500 grms, as prescribed under Rule-22. Taking the sample 500 grams short than the required limit resulted in failure of justice. Learned Magistrate relied upon the authority cited as Rajal Das G. Pamnani v. State of Maharashtra, 1975 (12) ACC 156 (SC) , and held that since the quantity fell short of the prescribed quantity according to Rule-22, it would cause injustice. On the basis of the observations made by Hon'ble Supreme Court the accused was acquitted, hence this appeal.
(3.) Heard the learned counsel for parties and also gone through the record of the case. Rajail Das G. Pamnai v. State of Maharashtra (supra) has since been over ruled by a larger bench of Supreme Court in the case cited as State of Kerala v. Alassary Mohammad, 1978 (15) ACC 109 (SC) . It is a five Judges' decision and three points have been finally decided, which are as under:- "(1) Rule 22 is directory and not mandatory. It has also been observed that Rule 22-B 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 to the contrary. It was held that this new Rule only clarifies the existing law without amending it and even without this clarification, the law was very clear; (ii) If the quantity sent to the Public Analyst, 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 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 sent a lesser quantity of the sample than the one prescribed, to the Public Analyst unless there be sufficient reason to do so.";