Yogeshwar Dayal, J.
1. The present appeal has been filed on behalf of the Director General of health Services against an order of the Metropolitan Magistrate, New Delhi dated 12th Apr. 1977 whereby the learned Metropolitan Magistrate acquitted all the respondents under Section 7/16 of the Prevention of Food Adulteration Act (hereinafter referred to as 'the Act').
2. The respondents had been prosecuted on the ground that a sample of 300 gms. of asafoetida (King) was lifted from the shop of M/s. Nand Lal and Company on 30th Mar. 1973 and one of the samples which was sent to the Public Analyst for analysis was found .1 adulterated due to 20-38 excess in total ash per cent weight and 8.84 excess in ash insoluble in dilute Hydrochloric Acid per cent by weight.
3. The respondents had denied adulteration and some of them like Bansi Dhar, Nand Lal, Vidya Sagar and Karam Narain had also pleaded that they were not in charge or responsible to the company for the conduct of its business and it was only Sunder Lal, from whom the sample was purchased, was looking after the affairs of the company.
4. It is, however, came out during trial that the Food Inspector had purchased the total quantity of 300 gms which was divided into three parts, thereforee, one sample was weighing about 100 gms. In the Court, the other sample was weighed and it was about 92 to 93 gms and, thereforee, it was less than 100 gms as prescribed by the Rules.
5. The learned Metropolitan Magistrate on the short ground that since the sample drawn was less than the required quantity, acquitted the respondents.
6. It is against this order that the appellants have come up in appeal and have submitted that mere small shortage in the sample would not vitiate the prosecution and the respondents were liable to be convicted.
7. In this connection they brought to our notice a decision of the Supreme Court reported as State of Kerala v. Alaserry Mohammad : 1978CriLJ925 .
8. It is thus clear that in view of this decision, the acquittal of respondent No. 6, M/s. Nand Lal and Company and its partner Sunder Lal, respondent No. 1, was unwarranted.
9. So far as other respondents, Bansi Dhar, Nand Lal, Vidya Sagar and Karam Narain are concerned, there is no evidence that they are in charge of and responsible to the company for the conduct of its business. On this short ground the appeal against respondents 2, 3, 4 and 5 fails and is dismissed.
10. But so far as respondent No. 1, Sunder Lal, and respondent No. 6, M/s. Nand Lal and Company, are concerned, they are liable to be convicted under the provisions of Section 7 read with Section 16 of the Act.
11. It will be noticed that there are lot of conflict of authorities and the Supreme Court itself in the case of Rajaldas Gurunamal Pamnani v. State of Maharashtra : 1975CriLJ254 had taken the view that R. 22 was mandatory and its violation resulted in injustice to the accused and hundreds of accused have been acquitted so far and the same view was followed by this Court in the case of Municipal Corporation of Delhi v. Attar Singh (1975) 2 FAC 20 and Jagdish Prasad v. Municipal Corporation of Delhi (1976) 2 FAC 196 and it was in this state of law that the respondents were acquitted by the learned Magistrate.
12. In the case of State of Kerala v. Alaserry Mohammed (1979) 1 FAC 145 : : 1978CriLJ925 , the Supreme Court in the circumstances also enunciated the law and recorded conviction but did not pass sentences. In the present case also the acquittal was recorded as far back as 12th Apr. 1977 and in the circumstances we would also restrain ourselves from sentencing the accused.
13. With these remarks the appeal is disposed of.