P.C. Jain, J. - (1.) This appeal by the State is directed against the judgment dated 9th January, 1981, passed by the Munsilf & Judicial Magistrate, Bharatpur in Criminal Case No. 659/1976, for an offence under Sec. 7/16 of the Prevention of Food Adulteration Act. The learned Magistrate acquitted the accused of the offence charged on the ground that at the time of taking sample of khandsari the seller noted on the reverse side of Form No. 6 that, 'open for sugar and khandsari sold by us is not fit for human consumption without purification.' The learned Magistrate observed that it was the duty of the Food Inspector to prove that the article of food i.e. Khandsari, in the instant case, was meant for human consumption. The learned Magistrate also recorded the verdict of acquittal on the ground that the sample was taken from the firm; but the firm had not been prosecuted along with the partner. In the opinion of the learned Magistrate, in the absence of the firm, its partners could not be prosecuted.
(2.) Shri Tibrewal, learned counsel for the respondent, has submitted that the view taken by the learned Magistrate was based on certain judgments of this Court which were binding on him. Shri Tibrewal has frankly conceded that the view as it stands today is quite different. Shri Tibrewal has further submitted that the very fact of acquittal still holds good. Shri Tibrewal has further submitted that even if there is some case on merit against the respondent, still in view of the fact that the respondent was acquitted in the year 1981, and, since then a period of more than 8 years has elapsed and the incident is of the year 1975, the order of acquittal should not be reversed now. In support of this contention, he has placed reliance on Food Inspector, Municipal Counsel, Baroda v. Madan Lal Ram Lal Sharma & Anr., 1983 (1) SCC 135 and two unreported cases of this Court; one being State of Rajasthan v. Ashok Kumar, dated 18th Feb., 1988 in S.B. Cr. Appeal No. 483/1979 and the other being State of Rajasthan v. Fateh Singh, dated 18th Feb., 1988 in S.B. Cr. Appeal No. 490/1979 . In Madan Lal.s case (supra), the Hon'ble Supreme Court make the following observations: The sample of curd was taken on September 4, 1976. Six years have passed and two courts have concurred acquitting the accused, namely, the Sessions Court and the High Court. We are, therefore, reluctant to interfere with the order of acquittal. But the learned counsel, Mr. M. C. Bhandari for the appellant, Food Inspector and the counsel Mr. Nain appearing for the State of Gujarat 2nd respondent supporting the appellant, urged that irregularity in churning the curd before sampling the same in bottles, as found by the High Court, if allowed to remain unquestioned, it would have an adverse effect on a large number of pending cases. We are, therefore, only inclined to examine the legal submission and we may make it absolutely clear that we are disinclined to interfere after six years in what is found to be marginal adulteration by the learned Magistrate so as to send the respondent to jail, though we must make it abundantly clear that we do not look upon with equanimity on offences under the Prevention of Food Adulteration Act because these offences have the deleterious effect playing havoc with the health and well-being of a large segment of the society. But the acquittal by two courts and delay of six years and coupled with the finding that there was marginal adulteration would certain be a disincentive to interfere with the order."
(3.) In Madanlal's case, the Hon'ble Supreme Court declined to interfere after eight years, though observed that it was a case of marginal adulteration, but refused to send the respondent to jail. In State of Rajasthan v. Fateh Singh (Supra), this Court observed that even if it may be possible to take a different view as taken by the learned Magistrate, there is no justification for interfering with the order of acquittal after lapse of more than 15 years. In State of Rajasthan v. Ashok Kumar (Supra) reliance was placed upon the judgment of the Supreme Court in Madan Lal's case (Supra) and the Court declined to interfere with the order of acquittal after delay of eight years.;