N.S.A. Nagar Mahapalika vs Gopal Das

K.K. Birla, J.—Sri B.N. Upadhya, learned Counsel for the Appellant, is present. None appears for the accused Respondent inspite of personal service. Heard learned Counsel for the Appellant.

In this case 600 grams of Dal Chana was taken by the Food Inspector by way of sample from the shop of the Respondent Gopal Dass. The same was divided in three equal parts, one of which was sent to the Public Analyst for analysis. The Public Analyst found the sample adulterated.

Under Rule 22 of the Prevention of Food Adulteration Rules, 1955, 250 grams of the sample should have been sent to the Public Analyst. The learned Additional Chief Judicial Magistrate, Agra, acquitted the accused simply on the ground that the quantity of the sample sent to the Public Analyst was less and it was a violation of Rule 22 and has, therefore, resulted in injustice.

Reliance was placed on the case of M.C.D. v. Gurdial Chandra 1977 (1) FAC 94, It is contended by the learned Counsel for the Appellant that the provisions of Rule 22 of the Prevention of Food Adulteration Rules are directory and not mandatory and the sample was fit for analysis. In my opinion, the contention has force. In the S.C. case of State of Kerala v. Alassery Mohd. 1978 (1) FAC 145 it has been held that Rule 22 is directory and not mandatory and also that the quantity of the sample sent to the Public Analyst for analysis shall be considered as sufficient unless the Public Analyst himself reports to the contrary. In the instant case Public Analyst had not reported that the sample sent to him was shorter or insufficient. Therefore, the acquittal on this basis alone cannot be maintained. The principle laid down in the case of Nagar Swasthya Adhikari Nagar Palika, Agra v. Mohammad Rafiq 1984 (2) FAC 235 also supports this view.

In the result, the appeal is allowed. The impugned order of acquittal dated 30th May, 1977, passed by the learned Additional Chief Judicial Magistrate, Agra, is set aside, and the case is remanded to the Chief Judicial Magistrate, Agra, for deciding the case in accordance with law either by himself or by any other competent Judicial Magistrate.