V.P. Mathur, J.
1. This appeal is directed against the judgment and order passed by Sri A.U. Khan, Additional Chief Judicial Magistrate, Agra on 30-5-1977 whereby he has acquitted the respondent Ram Gopal from the charges under Section 7/16 of the Prevention of Food Adulteration Act on the ground that in view of the law laid down in M.C.D. v. Gurdial Chandra (1977) 1 F.A.C. 93 non-compliance with the Rules (sic) not only an injustice because the sample sent to Public Analyst was much shorter than what is the prescribed quantity, hence there was infringement of the Rules and the respondent was entitled to acquittal.
2. Sri B.N. Upadhya, brief-holder of Sri N.C. Upadhya, Advocate, has argued this appeal before me.
3. So far as back in the year 1975 the Supreme Court in the case of Rajal Dass G. Pamnani v. State of Maharashtra : 1975CriLJ254 was of the view that if the Public Analyst did not have the requisite quantity mentioned in the Rules for analysis, there was bound to be caused not only infraction of the provisions but also injustice and that shortage of quantity for analysis was not permitted by the Statute. It was in the light of this pronouncement of the Supreme Court that the learned Magistrate passed the impugned order in the present case because admittedly the sample of the article taken into custody from the accused respondent was deficient in quantity and hence in his view proper analysis was not possible.
4. Later on the law was reconsidered by a larger Bench of the Supreme Court again while they sat down to decide three appeals from the State of Kerala, State of Maharashtra and from Municipal Corporation of Delhi. The judgment is reported in State of Kerala v. Alassery Mohd. : 1978CriLJ925 in which it has been held that if the quantity sent to the Public Analyst, even though it is lesser than that prescribed, is sufficient and enables the Public Analyst to make correct analysis, then merely because the quantity sent was not in strict compliance with the Rule, it will not result in the nullification of the report and obliterate its evidentiary value. It was also pointed out that this does not, however, mean that it gives an option to the Food Inspector to violate the rule. He is required to be very cautious in complying, with the rules as far as-possible and should not send a lesser quantity of sample than the prescribed one to the Public Analyst unless there be a sufficient reason for doing so.
5. Reference was also made to Rule 22-B which was added to the Rules in 1977 and which lays down that the quantity of sample sent to the Public Analyst should be considered sufficient unless the Public Analyst or the Director reports to the contrary. The Supreme Court was of the view that this new rule only clarifies the existing la w and is not by way of amending it. With this clarification the law was clear and it was. held that if there was sufficient compliance with Rules and analysis was possible with the lesser quantity sent to the Public Analyst, his report could not be discarded.
6. In this appeal, since the learned Additional Chief Judicial Magistrate has disposed of the matter on the technical legal ground which does not exist in favour . of the judgment now in view of the law laid down by the Supreme Court, as mentioned above, it will be proper that the case be remanded for retrial after setting aside the order of the learned Magistrate.
7. In the result, the appeal is allowed, the order of the learned Additional Chief Judicial Magistrate dated 30-5-1977 is set aside and it is directed that the case shall go back to the learned Magistrate by remand for redetermination of the entire matter afresh.
8. The learned Magistrate may issue bailable warrant for the arrest and presence of the accused before him. It will also be completely in his discretion to grant bail pending trial on such conditions as he may deem fit and proper.