Nagar Swasthya Adhikari, Nagar Mahapalika vs Narain Dass

K. Narayan, J.—This appeal u/s 378(4) Code of Criminal Procedure is directed against the order dated 9-8-1979 recorded by Additional Chief Judicial Magistrate Agra in case No. 2670 of 77.

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 Inspection, had visited the shop of Narayan Dass at about 9 a.m. on 19-10-74 and had purchased 450 grams tarmeric for the purposes of analysis etc. The tarmeric 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 acquittal on two grounds. The first ground was that the tarmeric 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, Rajaldas Gurunamal Pamanani Vs. The State of Maharashtra, , 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 a 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 and Others Vs. Alasserry Mohammed and Others, . 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 impression 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 the 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 larger 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 Additional Chief Judicial Magistrate sat in judgment on 9-8-1978, the law is laid down by the Supreme Court was that this defect was fetal 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 judicials 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.

One 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. Further even if the change in the correct interpretation as 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 retrail. In this behalf, the entire herizon 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 turmaric 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 retrial of the accused in the court of law after lapse of 17 years.

It may also be mentioned that attention of this Court was drawn to the decision in the case of Nagar Swastha Adhikari Nagar Mahapalika Agra v. Mohammad Rafiq and Nagar Swastha Adhikari Nagar Palika Agra v. Raghubar Dayal 1984 PFAC 253 and 254 to suggest that the proper course should be to direct retrial as was done in these cases. I am afraid the above aspect does not seem to have been raised before the learned Judges and has not been considered there. Unless the aspect of law is considered and decided one way or the other, it cannot be said to have laid down a principle of law. In fact that Hon''ble Supreme Court has in the above noted case of State of Kerala has observed at page 397 (para 17).

...But taking the totality of the facts and circumstances of each case, and, specially the fact that Pamanani''s case has held the field for about three years by now, we did not feel that justice required that we should interfere with the orders of acquittal in these cases and send some cases back to the High Court while deciding others ourselves by recording orders of conviction. Rule 22-B clarifying the law has also been introduced as late as December 1977 although Pamannani''s case was decided in December, 1974. We were informed at the Bar, and so far we are aware, rightly too, that for non-compliance with the requirements of Rule 22, many cases in different states had ended in acquittal. Decision in many of them became final and only a few could be brought to this Court. Each one of the Food Inspector concerned had failed in discharging his duty strictly in accordance with the requirements of the law, and, in such a situation, after great harassment, long delay, and expenses which the Respondents had to incur, they should not be punished by this Court.

In the result, I see no occasion to disturb the order of acquittal and consequently this appeal should fail.

The appeal is hereby dismissed.