Nagar Swasthya Adhikari, Nagar Mahapalika vs Shri Ram Gupta

R.B. Lal, J.—This appeal is directed against the order of acquittal passed by the learned Sessions Judge, Metropolitan Area, Kanpur on 26-5-1977.

Food Inspector Yogesh Lal Verma (PW 1) visited the restaurant of Shri Ram Gupta Respondent situate in house No. 7/199, Sarupnagar Kanpur on 12-11-1975 at about 11.30 a.m. and found the Respondent selling dahi. The Food Inspector gave the usual notice and purchased 600 grams of "dahi on payment of price Rs. 1.80 p. The other formalities with regard to the taking of sample were also observed according to rules. One phial of sample dahi was handed over to the Respondent. Another phial of sample dahi was sent to the Public Analyst who reported that the sample contained four percent fat and 8.1 per cent non fatty solids. He observed that the sample had been judged by the standard prescribed for buffalo milk. Since according to that standard the fat and non-fatty solids contents were below the prescribed limits, the Respondent was prosecuted for selling adulterated dahi and for having committed an offence u/s 7/16 of the Prevention of Food Adulteration Act (briefly the Act).

The defence of the Respondent inter alia was that the dahi was prepared from cow''s milk and this fact was brought to the notice of the Food Inspector. One defence witness was examined in this case.

The learned Magistrate found that the Respondent guilty and sentenced him to undergo rigorous imprisonment for six months and pay a fine of Rs. 1000/-. Feeling dissatisfied the Respondent appealed to the learned Sessions Judge Metropolitan Area, Kanpur,

Before the learned Sessions Judge it was argued that there was no compliance with Rule 22 of the Rules framed under the Act inasmuch as the quantity of dahi taken as sample was less than the statutory minimum of 200 grams and therefore the conviction of the Appellant (the present Respondent) was vitiated. It was also argued that the charge was not framed correctly. The charge was in respect of selling adulterated patti and not dahi. Dahi was not called by the name of patti. The learned Counsel for the State had prayed for a remand of the case so that this defect in the charge could be cured. The learned Sessions Judge, however, did not consider it necessary because he was of the view that the breach of the mandatory provisions of Rule 22 vitiated the trial. In the result, the learned Sessions Judge allowed the appeal and acquitted the accused.

The Nagar Swasthaya Adhikari did not feel satisfied and preferred this appeal by leave.

I have heard the learned Counsel for the parties at some lengh. Though the learned Sessions Judge did not cite any decision in support of his view that non-compliance wtih the mandatory provisions of Rule 22 vitiated the trial it appears that he had Supreme Court''s decision in Rajaldas Gurunamal Pamanani Vs. The State of Maharashtra, in mind. This decision was over-ruled by the Supreme Court by a later decision in State of Kerala and Others Vs. Alasserry Mohammed and Others, . Now a question may arise whether the order of acquittal can be set aside on account of the changed view of law taken by the Supreme Court after the order of acquittal was passed. A reply to this question is to be found in Supreme Court decision Ramdas Bhikaji Chaudhari Vs. Sadanand and Others, . The Supreme Court observed:-

Where the High Court in a Food Adulteration case held that there was non-compliance with Rule 22 of Prevention of Food Adulteration Rules in not sending the minimum quantity of sample to Public Analyst and thus acquitted the accused relying on a decision of the Supreme Court, but subsequently that Supreme Court decision was over-ruled the acquittal by the High Court was clearly wrong on point of law. Therefore in an appeal against acquittal, the exercise of discretion by Supreme Court not to interfere with the High Court''s order of acquittal on the ground of law as it then stood was correct, would not arise more so when it was a case of economic offender.

In view of the above legal position the order of acquittal cannot be sustained on the ground of breach of Rule 22, and deserves to be set aside.

The learned Counsel for the Respondent has submitted two points, first that the charge was not correctly framed in this case and, therefore, the trial was vitiated and second that there was no compliance with the provisions of Rule 9(j) and it had resulted in grave prejudice to the accused.

A perusal of the charge shows that it was not framed correctly. The charge was for sale of adulterated patti and not in regard to the sale of adulterated dahi. There is nothing on the record to indicate that dahi is also known by the name of ''patti''. In the question which were put to the accused u/s 313, Code of Criminal Procedure also it was not indicated that the charge against the accused was for sale of adulterated dahi. The nature of adulteration too was not mentioned to the charge. In this view of the matter the trial of the accused cannot be said to have been in accordance with law. The case would be retried after framing a correct charge against the accused.

Rule 9(j) of the Rules is directory as has been held by a Division Bench of this Court. There is a reference to the Division Bench decision in criminal revision No. 1050 of 1977, Sumer Chand v. The State criminal revision No. 1050 of 1977, decided on 24th January, 1980 by Hon''ble Bakshi, J. The judgment in the revision is reported in the journal 1980 Food Adulteration Cases 258, Sumer Chand v. State. The Division Bench however held that if the non compliance with the provisions of Rule 9(j) has caused any prejudice to the accused same is to be taken into consideration. Whether there has been prejudice to the accused is a question of fact to be decided on the peculiar facts and circumstances of each case. In the instant case it appears that the accused had no opportunity to show that the non-compliance with Rule 9(j) caused prejudice to him. Since it involves a question of fact, this too can be investigated on retrial.

In view of the above, this appeal deserves to be allowed. However, the Respondent cannot be convicted. The case should go back to the trial Court for a retrial according to law.

In the result, the appeal is allowed. The order of acquittal dated 26th May, 1977 is set aside and the case is remanded to the trial Court for a fresh decision according to law. The learned Chief Metropolitan Magistrate Kanpur will either try the case himself or make it over to some other Magistrate of competent jurisdiction for trial.