Yogeshwar Dayal, J.
(1) This appeal by special leave on behalf of the Municipal Corporation of Delhi is directed against a judgment of the Metropolitan Magistrate, Delhi, dated 7th March, 1977 whereby the learned Magistrate acquitted the respondent Anil Kumar, of the charge under Section 7/16(l)(a)(i) of the Prevention of Food Adulteration Act 1954 (hereinafter referred to as 'the Act') but convicted him for violation of Rule 50 of the rules framed under the aforesaid Act for selling the red chillies without license.
(2) It appears that the Food Inspector had purchased red chillies weighing 450 gms. from the respondent and divided them into three equal parts and sent one of the parts to Public Analyst for analysis. The Public Analyst reported that the chillies are adulterated, hence the complaint was filed.
(3) The learned Metropolitan Magistrate took the view that the chillies powder is 'condiment' and the minimum quantity required for analysis is 200 gms whereas the sample which was sent to the Public Analyst was only 150 gms. and relying on the decision of the Supreme Court in Rajaldas Gurunamal Pamanani v. The State of Maharashtra: 1975 (1) F.A.C. 1 and followed by V.D. Misra, J, in the case of Jagdish Parshad v. Municipal Corporation of Delhi : 1976 (2) F.A.C. 196, took the view that the sample was short by 50 gms and there was thus violation of the mandatory provisions of Rule 22 and accordingly acquitted the accused.
(4) The learned Magistrate after acquitting the respondent of the Charge under Section 7 read with Section 16(1)(a)(i) of the Act, however, convicted him for selling the chillies without license under the provisions of Section 16(l)(a)(ii) of the Act read with Rule 50 framed under the Act.
(5) Mr. Jain, who appears for the Corporation, brought to our notice the latest decision of the Supreme Court in the case of State of Kerala etc. etc. v. Alaserry Mohammed etc. etc. : 1978 (1) F.A.C. 145 wherein it is held that the provisions of Rule 22 are directory unless the Public Analyst was not in a position to analyze the sample but by mere violation of Rule 22, the accused is not entitled to acquittal. By the said judgment the Supreme Court had specifically over-ruled its earlier decision in the case of Rajaldas Gurunamal Pamanani v. The State of'Maharashtra 1975 (1) F.A.C. 1 (supra). In view of this decision of the Supreme Court, the order of acquittal for the offence under Section 7 read with Section 16(1)(a)(i) is liable to be set aside.
(6) But, as noticed earlier, in the present case the accused had already been convicted under Section 16(l)(a)(ii) of the Act and it has already been held by this Court in the decision of the Division Bench reported as Municipal Corporation of Delhi v. Sh. Darshan Kumar and State : 1979 (1) F.A..C. 124 that a 'person cannot be convicted both under sub-clause (ii) and sub-clause (ii) of Section 16(l)(a) of the Act,
(7) Since the respondent has already been convicted under sub-clause (ii) of Section 16(l)(a) of the Act, that conviction has become final. Consequently a finding is there in terms of Section 16(l)(a)(ii) that sale was......of any article of food 'other than an auricle of food referred to in sub-clause (i).' There is' no appeal or revision against that part of the order of conviction. After a lapse of seven years we are not inclined to use our suo moto power of revision to set aside the conviction, and thereforee, the respondent cannot at this stage be convicted under Section 16(l)(a)(i) of the Act.
(8) However, learned counsel for the Corporation brought to our notice a decision of my brothers Aggarwal and Sharief-Ud-Din, JJ. reported as Municipal Corporation of Delhi v. Raghbir Singh : 1984 (1) F.A.C. 296 where in the Division Bench in a similar case had accepted the appeal against acquittal under Sub-clause (i) of Section 16(l)(a) of the Act and on the request of the accused acquitted him of the conviction under Section 16(l)(a)(ii). It appears that the aforesaid decision of the Division Bench of this Court reported as Municipal Corporation of Delhi v. Shri Darshan Kumar and State : 1979(1) F.A.C.124 (supra) was not brought to the notice of the Bench who decided the case of Municipal Corporation of Delhi v. Raghbir Singh (supra) and thereforee the Division Bench passed the orders in that case and this aspect was never considered at all,
(9) We would accordingly bold that the present appeal is incompetent and is dismissed as such.