N.C. Mukherji, J.
1. This Rule arises on an application Under Section 482 read with Section 401 of the Code for quashing a proceeding being Case No. ID of 1977 Under Section 16(1)(a)(ii) read with S, 7 of the Prevention of Food Adulteration Act, 1954 pending before Shri S. K. Kar, Metropolitan Magistrate. 4th Court, Calcutta. This Rule is also against an order passed on Mar. 22, 1977 rejecting the petitioners' application for discharge in the aforesaid case and all subsequent orders passed in the aforesaid case.
2. On Mar. 2, 1977 one Soumya Bikash Bose, Food Inspector of the Corporation of Calcutta filed a petition of complaint Under Section 16(1)(ii) of the Prevention of Food Adulteration Act read with Section 7 of the Act before the learned Metropolitan Magistrate. The allegation was that the complainant inspected the shops/ godown Manufactory of the accused on April 10, 1976 and found Atta exposed for sale. Some quantity of the said Atta was purchased. Some part was sent to the public Analyst and on receipt of the report it was found that the Atta was adulterated/unfit for human consumption. It is contended by the Ld. Advocate for the petitioners that S. U was amended by Amendment Act of 17-2-1976 and the Amendment Act came into force from 1-4-1976. The inspection was held on 10-4-1976. In such circumstances, the procedure as provided in Amended Section 11 ought to have been followed. Section 11(1)(c)(ii) provides that when a Food Inspector takes a sample of food for analysis he shall send the remaining two parts to the Local Health Authority for the purpose of Sub-section (2) of this Section and Sub-section (s (2), 2-(A) and 2-(E) of Section 13. In this Rule, an affidavit in opposition has been filed by Shri A. K. Basu, Chief Law Officer of the Corporation of Calcutta. It is stated in paragraph 5 of the opposition that it is admitted that the Food Inspector did not send to the Local Health Authority the remaining two parts of the sample, in such circumstances, the said amended procedure of taking sample was not known to him and as such, was not in force, it has further been stated in paragraph 6 that on 10th April, 1976 the Food Inspector inspected the godown of the petitioner No. l and found the stock of Atta exposed for sale or manufacture and the same was suspected to be adulterated. Accordingly, he took samples according to the procedure in force prior to the Prevention of Food Adulteration (Amendment) Act, 1976. In such circumstances, he was not aware of the said amended procedure and as such, he thought that the said amended procedure was not in force at the time of taking the sample.
3. Mr. Roy, learned Advocate appearing for the petitioners, submits that the admitted position is that the provisions of the Amended Act were not followed by the Food Inspector. The amended provision is mandatory and as such, the non-compliance of the said provision is fatal to the prosecution. The learned Magistrate, according to Mr. Roy, did not apply his mind at all to the provisions of the Amended Act and simply rejected the petition stating 'The defence petition appears misconceived. Hence, it stands rejected'. Mr. Roy further submits that in view of the admitted position that the provisions of the amended Section 11(1)(c)(ii) were not followed it must be said that the accused has been highly prejudiced.
4. Mr. Samaddar, learned Advocate appearing for the Corporation of Calcutta, raises several points. In the first place, he submits that the application is barred by limitation as in the present application the petitioners pray that the order passed on Mar. 22, 1979 rejecting the petitioners' application for discharge and all subsequent orders be set aside. It is true that such a prayer has been made. But really the Rule was obtained for quashing the entire proceeding on the ground that as the amended provisions were not followed, it has caused serious prejudice to the accused and as non-compliance of the amended provisions is fatal to the prosecution the matter will not improve for the prosecution by examining further witnesses. Considering the fact that we are required to consider whether the proceeding should be quashed, we do riot think that the application is barred by limitation. The first contention raised by Mr. Samaddar is, thus, negatived.
5. In the next place, Mr. Samaddar contends that the petitioner has come up to this Court against an interlocutory order and according to the provisions of the Code such an order cannot be revised. Mr. Samaddar relies on a decision reported in : 1977CriLJ1891 (Amar Nath v. State of Haryana). Mr. Roy, on the other hand, relies on the Supreme Court decision reported in : 1978CriLJ165 (Ma-dhu Limaye v. State of Maharashtra) where the case, referred to by Mr. Samaddar. was considered and it has been laid down that such an order is revisable. It has been settled by the Supreme Court that an order which goes at the root of the proceeding can be revised. There is no doubt that whether, a proceeding should be quashed or not, goes at the root of the proceeding and that being so, it must be said that the present application is maintainable. This contention of Mr, Samaddar is also over-A ruled. Next, Mr. Samaddar submits that the application which was filed by the petitioners before the learned Magistrate was premature. Such an application was filed after P.W. 1 was examined and cross-examined. The learned Magistrate could only discharge the accused after examining all the prosecution witnesses and as such, the application for discharge of the accused was rightly rejected by the learned Magistrate, Mr. Roy submits that before P.W. 1 was examined it was not known what was exactly the position. P, W. 1 has in his examination clarified the position, namely, that the amended provision was not followed in this particular case as the amended provision was not known. It was only at that point of time occasion arose for taking the plea that the non-compliance of the amended provision has caused serious prejudice to the accused. We fully agree with Mr. Roy on this point. Lastly, Mr. Samaddar submits that the report reveals that the sample which was taken was adulterated. True that the amended provision was not followed, it was only technical and it cannot be said that it has caused prejudice to the accused and it is fatal to the prosecution. Mr. Roy joins issue and contends that the amended provision has given a valuable right to the accused and because of non-compliance of the amended provision, the accused has been deprived of that right. Considering the relevant provisions of the Act we are of the opinion that the non-compliance of the amended provisions is fatal to the prosecution and as such, the proceeding is liable to be quashed.
6. In the result, the application succeeds and the Rule is made absolute. The proceeding pending before the learned Magistrate is quashed and the petitioners are discharged.
N.G. Chaudhuri, J.
7. I agree.