K. Bhatnagar, J.
1. Respondent Shanker Lal was tried for the offence Under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter to be referred as 'the Act') by the Chief Judicial Magistrate, Churu.
2. The respondent was tried on a complaint lodged by the Food Inspector Mangilal (PW 1) who had checked his shop on January 29,1974. The Inspector purchased red chillis powder from the respondent and after observing necessary formalities sent the sample to public analyst for examination. As per report of the public analyst Ex. P. 6 the sample was found to be adulterated. Thereafter, complaint was filed in the Court of the Chief Judicial Magistrate, Churu was proceeded with the trial as stated earlier. The learned Magistrate held the red chillis powder to be 'condiment' and not a 'spice' and therefore, came to the conclusion that sending of 150 gms. of sample instead of 200 gms. was in contravention of Rule 22 of the Prevention of Food Adulterotion Rules, 1955 (hereinafter to be referred as 'the Rules'). In view of that finding, the learned Chief Judicial Magistrate acquitted the respondent of the charge.
3. Being dissatisfied by that judgment, the State of Rajasthan after seeking permission from this Court has filed the present appeal.
4. I heard Mr. M.C. Bhati, learned Public Prosecutor for the State and Mr. S.R Singhi, learned Counsel for the accused respordent and carefully perused the record of the case.
5. The main question involved in the matter is whether the red chillis powder falls within the definition of 'spice' or 'condiment'. If it is 'spice', Item No. 17 of Rule 22 of the Rules would apply and 150 gms sample was sufficient for analysis. If it is 'condiment' then Item No. 23 'Food not spcifid would be attracted and the requirement of the sample would be 200 gms. There is difference of opinion in various High Courts on the point as to whether 'red chillis powder' is 'spice' or 'condiment' The view of the Gujarat High Court expressed in the case of Kalidas Damodar Das v. The State 1976 (I) FAC 117 is that chillis fall under the entry 'spices' at Sr. No. 17 of Rule 22 of the Rules. On the other hand the view taken by the Bombay High Court in the ease of Vithal Kallappa Shetty v. The State of Maharashtra 1976 (II) FAC 157 is that the chilly powder must fill under the last item viz. 'Foods not specified'. The view of Delhi High Court in the case of Hans Raj v. The State 1977Cr LJ 92 was similar to the one expressed in Vithal Kullapaa Shetty's case 1976 (II) FAC 157 and chilly powder has been consrdered as a condiment and not a spice,
6. The question as to whether chillis powder is 'spice' or 'condiment' came for consideration before this Court in the case of State of Rajasthan v. Tejamal and his Lordship was pleased to hold that chillis powder is 'condiment' and not a 'spice' and as such falls under Item No. 23 of Rule 22 'Foods Mot specified' rather than under Item No. 17 of Rule 22. There being an authority of this Court on the point and to bering in respectful agreement with the opinion expressed therein, it is held that the red chilly powder in the case on hand was a condiment and not a spice.
7. The next question emerging for consideration is whether there was non compliance of Rule 22 of the Rules and if so whether it is fatal for the prosecution. Being ''Foods Not Specified', the sample of 200 gms. chilly powder ought to have been sent for the purpose of analysis. This is Dot in dispute that only 450 gms. was sent for analysis purpose in this case and the order of acquittal by the learned Chief Judicial Magistrate is based on the ground of non-compliance of the Rule 22 with respect to the quantity to be sent for chemical analysis resulting into injustice to the accused respondent.
8. In order to appreciate the correctness of the finding of the learned Chief Judicial Magistrate petition of law as it stood at the relevant time and subsequent change in it will have to be looked into.
9. The sample was taken on January 29, 1974. The report of the Public Analysis is dated March 1, 1974. The impugned judgment is dated May 5, 1977. In the case of Rajaldas G. Pamnami v. State of Maharashtra AIR 1973 SC 189 the question of non-compliance of Rule 22 regarding the quantity of sample to be sent to Public Analyst came for consideration. The matter related to compounded as a foerida and 200 gms. of that material was to be supplied for analysis. Public Analyst was not having the requisite quantity for analysis.
Their Lordships were pleased to hold that non compliance of the relevant rules with regard the quantity to be supplied, caused not only infracation of the provisions but also injustice. In that view of the matter conviction on such 'analysis was not held to be proper. This was the interpretation of the Rules at the time the learned Chief Judicial Magistrate passed the impugned judgment.
10. In the case of State of Kerala etc. v. Alassery Mohammed etc. : 1978CriLJ925 their Lordships of the Supreme Court were pleased to observe as under:
On a careful consideration of the matter we have come to the conclusion, and we say so with very grant respect, that Pamanani's case : 1975CriLJ254 on the point at issue before us was not correctly decided.
11. Their Lordships were further pleaded to propound the principie that Rule 22 is directory and not mandatory and observed as under
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 evidentiary value. If the quantity sent is less, it is for the Public Analyst to see whether it is sufficient for his analysis or not. If he finds it insufficient, there is an end of the matter. If, however he finds it sufficient, but due to one reason or the other, either because of further tests or otherwise, it is shown that the report of the Public Analyst based upon the short quantity sent to him is not trustworthy or beyond doubt, the case may fail.
12. What is important is the sufficiency of the quantity for analysis. If the Public Analyst finds the quantity insufficient it is obvious that the case may end in acquittal but if the object is not frustrated, and is squarely and justifiably achieved without any shadoow of doubt, then it will endanger public health to acquit offenders on technical grounds which have no substance.
13. The opinion of the Highest Court of the country having thus undergone a serious change, the question emerging for answer is whether the impugned judgment based on the opinion in Pamanani's case which held the field at the relevant time calls for any interference.
14. Such a question came before their Lordships of the Supreme Court in the case of Ramdas Bhikaji Chaudhari v. Sadanand and Ors. : 1980CriLJ111 in a Food Adulteration Case, the High Court acquitted the accused in view of the principles laid down in Pamnani's case for non-compliance with Rule 22 of the Rules. When the matter went before Hon'ble the Supreme Court, their Lordships were pleased to enunciate the principle that, whenever a previous decision is over-ruled by a larger bench the previous decision is completely wiped out and Article 141 of the Constitution will have no application to the decision which has already been over-ruled, and the Court would have to decide the cases according to law laid down by the latest decision of the Supreme Court and not by the decision which has been expressly overruled.
15. Now that the case has come up before the Court when the decision of Pamnani's case is no more a good law. the principle enunciated in the case of State of Kerala etc. v. Alassery Mohammed etc. : 1978CriLJ925 (supra) will have to be applied.
16. In the case of Ramdas : 1980CriLJ111 (supra) their Lordships were pleased to set aside the order of acquittal. However, in view of the fact that the prosecution was in the year 1971 and acquittal by the High Court in the year 1976, the respondents were not sent to Jail and only fine was imposed.
17. In the case of State of Kerala v. Allassery Mohd etc. : 1978CriLJ925 (supra) while over-rulling Pamanuni's case and laying down the principle that Rule 22 is directory add not mandatory, their Lordships for that reasons expressed in Paras 17 and 18 of the judgment, did not think it proper to set aside the order of acquittal passed in favour of the respondent. The case of State v. Sunder Lal (7) relating to adulteration of chillies powder in which the trying Magistrate had acquitted the accused on the basis of Pamnani's case came before this Court in appeal. His Lordships was pleased to take into consideration all the reasons recorded by the Supreme Court in Paras 17 and 18 of the Alassery Mohd. etc. case (6) (supra) and the observations of Hon'ble the Supreme Court and the facts that the offence was said to have been committed in the year 1975, the order of acquittal was recorded in the year 1975, almost six years had passed following the earlier decision many acquittals had been recorded felt declined to set aside the order of acquittal.
18. As evident from the facts narrated above the case on hand also falls in the same line. In view of the facts and circumstances of the case, I am, therefore, of the opinion that after the lapse of a period of about nine years after the alleged offence and six years after the order of acquittal in a matter like the present one, it would not be proper to interfere in the order of acquittal.
19. The appeal is accordingly dismissed.