Nagar Swasthya Adhikari vs Mohammad Rafiq

V.P. Mathur, J.—I have heard the arguments of Mr. B.N. Upadhyaya.

Mr. A.U. Khan the then Additional Chief Judicial Magistrate, Agra by his order dated 18-7-1977 has directed acquittal of Mohammad Rafiq, who was charged for an offence punishable u/s 7 read with Section 16 of the Prevention of Food Adultertation Act. Against this order of acquittal, the present appeal has been filed.

It appears that on 16-9-1975 at about 12 noon, the Food Inspector obtained a sample of Dal-chana from the shop of the accused and it was sent for analysis to the Public Analyst. The Public Analyst report dated 5-12-1975 (Ext. Ka-5) shows that the sample contained about 6 percent mixture of Dal Khesari (lathyrus sativus). This was harmful for the public health.

The learned Magistrate however disposed of the matter on a technical legal ground. He placed reliance upon Hon''ble Supreme Court''s decision in the matter of Rajaldas Gurunamal Pamanani Vs. The State of Maharashtra, and held that since the quantity obtained by way of sample was far to short of the prescribed quantity according to the rules, hence it will not only cause infraction of the provisions of law but also injustice. It was also held that the shortage of quantity for analysis is not permitted by the statute. On the basis of this observation of the Supreme Court, the accused was acquitted.

Rajaldas Gurunamal Pamanani Vs. The State of Maharashtra, has been overruled by a larger bench of the Supreme Court in the case of State of Kerala v. Alassary Mohammad; State of Maharashtra v. Shantilal Kalidas Gujarati; State of Kerala and Others Vs. Alasserry Mohammed and Others, . It is a five Judges'' decision and three points have been finally decided:

(i) 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 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 rhan the one prescribed, to the Public Analyst unless there be a sufficient reason to do so.

This being the latest position of the law, acquittal of the accused merely on the ground that the quantity sent to the Public Analyst was short 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 can not be made.

Under these circumstances, the appeal is allowed. The order passed by the learned Magistrate is set-aside. The case is remanded to the Chief Judicial Magistrate, Agra for re-determination of the case either by himself or by transferring it to such other competent Court as he may deem proper.