A.R. Shimpi, J.
1. The State has filed this appeal challenging the order of acquittal recorded in favour of the respondent - original accused - by the Chief Judicial Magistrate, Satara, acquitting the accused under the provisions of the Prevention of Food Adulteration Act.
2. The facts, in brief, are as under : - Gajanan Rangrao Musale, who is working as the Food Inspector, Satara District, visited the shop belonging to the respondent known as 'Highway Canteen' at Kondave, on 12th September 1974 at 12-30 p. m. After disclosing his identity he purchased a sample of chilly-powder for analysis. He took sample of 450 grams of chilly-powder and paid Rs. 6/-. There is no dispute that all the usual formalities have been performed by him in the instant case, such as, dividing the sample into three parts, putting it into three bottles which were corked and labelled. All this is done in the presence of the panch who was taken by the Inspector. One of the bottles was sent for examination of the Public Analyst who found that the sample contained total ash more than 8% by weight and was adulterated under Section 2 (i) (e) of the Prevention of Food Adulteration Art, 1954. After obtaining the sanction, the accused was prosecuted for having stored for sale adulterated chilly-powder.
3. At the trial, the Food Inspector Shri G. R. Musale was examined who corroborated his complaint and substantially deposed what I have stated above as prosecution case. The Public Analyst was examined who stated that the chilly-powder is spices, and in the instant case, sample of 150 grams collected was more than sufficient quantity for the purposes of analysis. The learned Magistrate held that the chilly powder was not spices. The sample of the chilly-powder that ought to have been sent under rule 22 to the Public Analyst was 200 grams, i. e. under caption foods not specified. AS there was a breach of Rule 22, the accused was entitled to acquittal.
4. Aggrieved by this order, the present appeal has been filed. What was contended before me by the learned Public Prosecutor Shri N. D. Hombalkar is that the learned Magistrate was in error in holding that the chilly-powder was not spices or article falling under item No. 17 of Rule 22. It was further contended that even if it was spices, still it fell under Clause 23 as 'food not specified' and the sample which should have been collected was 200 grams, still the Public Analyst who has been examined in this case has stated that the sample sent was more than sufficient for the purposes of analysis. Therefore, even if there was breach of rule 22, there was no prejudice caused to the accused. Under Rule 22 of the Prevention of Food Adulteration Rules, under item No. 17, 'spices' is mentioned and before amendment of that rule under Clause 23. it was stated 'food not specified'. The approximate quantity of sample of food to be sent to the Public Analyst for analysis is specified in rule 22 and under Clause 17 'Spices' 150 grams should be sent for the examination, while before the amendment of the Clause 23 under the caption 'Food not specified', sample which ought to have been sent was 200 grams. In the instant case the sample of chilly-powder collected is 450 grams. What is sent to the Public Analyst is 150 grams. If it fell under 'Spices' then there is no breach of rule 22, but if it does not fall under 'spices' there is breach of rule 22. The question whether it would fall under item No. 17 'spices' directly arose for consideration before this Court in Criminal Appeals Nos. 1032 of 1973 and 1033 of 1973 decided on 17/20-3-1976 (Reported in (1976) 2 FAC 157 (Bom)) Justice Padhye who decided those appeals held that the chilly powder cannot fall under item No. 17 'Spices'. Similar questions also arose in Criminal Revn. Appln. No. 223 of 1975 decided on 13-10-1975 (Bom). Apte J. held that the chilly powder cannot fall under item No. 17 'spices'. There is another unreported decision of this Court in Criminal Appeal No. 325 of 1974 by Justice B. M. Sapre. The judgment was delivered on 18-11-1975 (Reported in (1976) 1 FAC 137 (Bom)). It takes the view that chilly powder is a condiment. Justice Sapre has also held that it does not fall under item No. 17 so as to attract 'spices'. In view of the reasoning given in these three unreported judgments of this Court, it is unnecessary to repeat the same arguments over again to repel the contention of Shri' Hombalkar, I entirely agree with the reasoning and hold that chilly-powder is not spices. Therefore, it does not fall under item 17 of rule 22. But it falls under item 23 'food not specified'. Therefore, there is no breach of rule 22 of the Prevention of Food Adulteration Rules.
5. It was then contended that under rule 22 the quantity of sample of food to be sent to the Public Analyst is mentioned and while stating It rule 22 itself stated approximate quantity to be supplied. Therefore, though weight is stated to be 200 grams, if the quantity which is sufficient for the purposes of analysis is supplied and if the Public Analyst finds it sufficient for the purposes of analysis, then there is no prejudice caused to the accused. This argument appears plausible but it cannot be, accepted in view of the decision of the Supreme Court in Rajaldas G. Pamnani v. State of Maharashtra : 1975CriLJ254 . In para 17, the Chief Justice N. Ray, who has delivered the judgment, has observed (at p. 256 of Cri LJ):
Rule 22 states that in the case of asafoetida the approximate quantity to be supplied for analysis is 100 grams and in the case of compounded asafoetida 200 grams. The Public Analyst did not have the quantities mentioned in the Rules for analysis. The appellant rightly contends that non-compliance with the quantity to be supplied caused not only infraction of the provisions but also injustice. The quantities mentioned are required for correct analysis. Shortage in quantity for analysis is not permitted by the statute.
6. In the result, the decision given by the learned Magistrate will have to be upheld. In the result I pass the following Orders- The appeal of the State fails.