R.N. Aggarwal, J.
1. The facts relevant for the decision of this petition are these : on 1st May, 1967, Food Inspector M. M. Kathpalia had purchased a sample of gold spot (carbonated water) for analysis from the late Shri Greesh Chand Mathur who had kept the said article of food for sale as Manager of D. T, U. Employees Cooperative (Head Office) Canteen, Indraprastha Estate, New Delhi. On analysis the sample was found adulterated due to metallic contamination and presence of extraneous insoluble matters. On receipt of the report of the Chemical Analyst the Municipal Prosecutor filed a complaint under Section 16 of the Prevention of Food Adulteration Act (briefly 'the Act') against the following persons:
1. Shri Greesh Chand Mathur, Manager, D.T.U. Employees Head Office Cooperative Canteen, Indraprastha Estate, (Died during the trial).
2. Shri G.S. Gujral, Salesman, Delhi Bottling Company Private Ltd.
3. Parle Bottling Company Pvt. Ltd., Bombay.
4. Delhi Bottling Co. Pvt. Ltd., New Delhi.
5. Shri D.J. Brahma, Branch Manager, Delhi Bottling Co. Pvt. Ltd., and
6. Shri V.R. Acharya, Chemist, Delhi Bottling Company Private Ltd.
2. On a consideration of the evidence produced by the Corporation, the Magistrate trying the case found that the Corporation had failed to prove that the sample bottles purchased by the Food Inspector were from the stock which had been supplied by Shri Gujral, Salesman of the Delhi Bottling Company Pvt. Ltd. to the Canteen. He, thereforee, discharged the remaining accused. Against the order of discharge the Corporation preferred a revision petition to the Court of Session but without any success. Against the order of the Additional Sessions Judge, the Corporation preferred a revision petition in the High Court which was heard by M.R.A. Ansari, J. His Lordship vide judgment dated 17th May, 1972 upheld the order of discharge as regards the two companies, i.e. Parle Bottling Company Pvt. Ltd. and the Delhi Bottling Co. Pvt. Ltd. but set aside the discharge order as regards the other accused and remanded the case to the Magistrate for trial in accordance with law.
3. The discharge of the above said two companies was maintained for the reason that a company or a firm could be indicted and punished only for an offence for which the imprisonment was not mandatory and that since the offence with which the company is charged with is compulsorily punishable with imprisonment the company as such could not be prosecuted. This view was expressed following the judgment in Rameshwar Chotte Lal v. Union of India . The decision of Ansari, J. was not challenged by the Corporation in the higher Court, and consequently it became final as far as the parties were concerned.
4. The view expressed in Rameshwar Chotte Lai (supra) was reconsidered in Municipal Corporation of Delhi v. J. B. Bottling Co. Pvt. Ltd. 1975 FAC 321 : . A Full Bench consisting of T. V. R. Tatachari, C. J., V.S. Deshpande and Yogeshwar Dayal, JJ., while overruling the view taken in M/s. Rameshwar Chhotte Lal held that a company as defined in Section 17 of the Act does not enjoy immunity from prosecution when under the said Act, it is alleged to have committed an offence to which the proviso to Sub-section (1) of Section 16 is not applicable, and, in case such a Company is found guilty of such an offence, it can be punished with fine.
5. In view of the change in the law, on 27th Feb. 1976, the Municipal Corporation of Delhi through the Assistant Municipal Prosecutor filed a fresh complaint under Sections 7/17 read with Section 16 of the Act against Parle Bottling Co. Pvt. Ltd. and the Delhi Bottling Co. Pvt. Ltd. The two companies mentioned above filed an application under Section 245 (2) of the Code of Criminal Procedure challenging the validity and competency of the above said complaint on the grounds firstly that the order of discharge was passed by the Magistrate on the merits of the case and the said order was affirmed by the Additional Sessions Judge and ultimately maintained by the High Court, though on a ground different to the one given by the Courts below, is not maintainable in law on the same facts and allegations and secondly the fresh complaint has been filed after almost 9 years of the alleged commission of offence and it is barred by limitation under Section 468 of the Code of Criminal Procedure. It was also alleged that the mere fact that there has been a change in law will not justify reopening of the cases which had been decided on the view of the law then prevailing.
6. Shri J. D. Kapur, Metropolitan Magistrate, who had heard the application dismissed the contentions of the applicants and held that the fresh complaint Is not barred by the rule of estoppel or rest judicata. The plea of limitation was rejected for the reason that no period of limitation is prescribed under the Act.
7. Against the above order the Companies have come in revision.
8. Shri Sareen, on behalf of the petitioners, contended that the decision of the High Court in Municipal Corporation of Delhi v. J. B. Bottling Co. Pvt. Ltd. , (supra), by which the Court had overruled its earlier decision would apply to the cases in future and it cannot be given retrospective effect; in other words, according to the counsel, the doctrine of prospective overruling should be applied. The counsel in support of his contention relied on L. C. Golak Nath v. State of Punjab : 2SCR762 , wherein their Lordships observed as under:
It is indisputable that a Court can overrule its earlier decision there cannot be any valid reason why it should not restrict its ruling to the future and not to the past. Even if the party filing an appeal may not be benefited by it, in similar appeals which he may file after the change in the law he will have the benefit. The decision cannot be obiter for what the Court in effect does is to declare the law but on the basis of another doctrine restricts its scope. Stability in law does not mean that injustice shall be perpetuated.
9. On giving the argument my careful thought I ant of the view that the principles underlying the doctrine of prospective overruling would apply to the facts of the case in hand. When the revision petition filed by the Municipal Corporation against the order of discharge of the petitioner and other accused was heard by Ansari, J. the law was that no company or firm could be prosecuted and punished for an offence which is compulsorily punishable with imprisonment. The Corporation did not challenge the law laid down in M/s. Rameshwar Chotte Lai , (supra), and which was followed by Ansari, J. by taking the matter to Supreme Court. In the result the decision became final as far as the parties to the case were concerned. The fact that in a subsequent decision the law laid down in M/s. Rameshwar Chotte Lai was overruled cannot justify the reopening of the cases which had been decided long before and in accordance with law then holding the field.
10. In this connection reference may be made to another case, State of Kerala v. Alaserry Mohammed : 1978CriLJ925 . The question that was mooted in the above said case was whether the non-compliance with the requirement of Rule 22 of the Prevention of Food Adulteration Rules vitiates the trial or the conviction recorded under Section 16 (1)(a)(i) of the Act. Rule 22 specifies the quantity of sample that is to be sent to the Public Analyst/Director for analysis as specified therein for the various articles of food. In Rajaldas Gurunamal Pamanani v. The State of Maharashtra : 1975CriLJ254 , the above said rule came up for consideration and it was held that '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', On the basis of the above judgment a number of prosecutions under the Act failed in various Courts in India. The correctness of the judgment in Pamanani (supra) was doubted and the matter was reconsidered in the case of State of Kerala (supra). Their Lordships overruled the law laid down in Pamanani's case and held that if the quantity sent to the Public Analyst, even though it is less than that prescribed, is sufficient and enables the Public Analyst to make a correct analysis, then merely because the quantity sent was not in strict compliance with the rule will not result in the nullification of the report and obliterate its evidential value and that if the quantity sent is less it is for the Public Analyst to see whether it is sufficient for his analysis or not. A question arose as to what order should be passed in the various cases which had ended in acquittal following the law laid down in Pamanani's case, and in which appeal had been filed. Their Lordships observed as under (at p. 932 of 1978 Cri LJ):
In some cases High Court refused special leave against orders of acquittal; in others some other grounds of attack on the order of conviction were available but were neither gone into nor decided by the High Court; in some others the High Court following the decision of this Court in Pamanani's case recorded orders of acquittal. We also found that, in some cases, the adulteration was of a minor and technical character, although in some it was of, rather, serious nature too. In some cases, decisions were given on the footing that chillies powder is condiment and not spice a matter which we are not deciding. 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 all 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 Dec. 1977 although Pamanani's case was decided in Dec, 1974. We were informed at the bar, and so far as 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 Inspectors 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.
It would be clear from the above decision that their Lordships did not think it proper and advisable to disturb an order of acquittal which was founded on the earlier decision despite that an appeal was filed against that order of acquittal. The case in hand is on a much stronger footing. The case was decided by Ansari, J. on 17th May 1972 following the law laid down in M/s. Rameshwar Chotte Lai which was overruled in 1975. The fresh complaint was filed in February 1976. I feel that justice requires that such a prosecution should not be allowed to be proceeded with.
11. The next point that requires consideration is whether the complaint is barred by limitation under Section 468 of the Code of Criminal Procedure. The learned Magistrate dismissed the plea of the petitioners regarding limitation on the ground that no period of limitation is prescribed for filing of a complaint under the Act. This, in my opinion, is not a correct view. Section 4 of the Code of Criminal Procedure runs as under:
4(1) All offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.'1 It would be clear from the above provision that the Code of Criminal Procedure contemplates two kinds of offences; one under the Indian Penal Code and other under any other law.
12. Section 468 of the Code of Criminal Procedure is in the following terms:
468, (1) Except as otherwise provided elsewhere in this Code, no court shall take cognizance of an offence of the category specified in Sub-section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be
(a) six months, if the offence is punishable with fine only;
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, if the offence la punishable with imprisonment for a term exceeding one year but not exceeding three years.
From a reading of the above provision it is clear that it makes no distinction between the two kinds of offences. Shri B. T. Singh, counsel for the Corporation, contended that the sample was found to be adulterated due to metallic contamination and presence of extraneous insoluble matters and that the offence committed is liable to be punished with Imprisonment for a term of not less than one year but which may extend to six years and with fine which shall not be less than Rs. 2000/- and, thereforee, Section 468 will not be applicable. Section 16(1-A) provides as under:
(1-A). If any person whether by himself or by any other person on his behalf, imports into India Or manufactures for sale, or stores, sells or distributes.
(i) any article of food which is adulterated within the meaning of any of the Sub-clauses (e) to (1) (both inclusive) of Clause (ia) of Section 2; or
(ii) any adulterant which is injurious to health, he shall, in addition to the penalty to which he may be liable under the provisions of Section 6, be punishable with imprisonment for a term which shall not be less than one year but which may extend to six years and with fine which shall not be less than two thousand rupees:Provided that if such article of food or adulterant, when consumed by any person is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of Section 320 of the Indian Penal Code, 45 of 1860, he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to term of life and with fine which shall not be less than five thousand rupees.
13. The presence of metallic contamination would be injurious to health and the offence would fall under Section 2(e) of the Act which would be punishable under Section 16(1-A) of the Act. In the above view, Section 468 of the Code of j Criminal Procedure would not be applicable on the facts of this case.
14. Before parting with the case, in all fairness to the counsel for the petitioner, I may notice that the counsel had urged that the fresh prosecution would be barred by the rule of issue estoppel and autrefois acquit. The order of discharge of the petitioners was sustained by the High Court on a legal ground and not on merits of the case. I have my doubts if the principle of issue estoppel would be attracted to the facts of this case but I do not feel it necessary to decide this contention in the view of the case I have taken. In the result, I would allow the petition and quash the complaint dated 27th February, 1976.