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PETITIONER: MUNICIPAL CORPORATION OF DELHI

       Vs.

RESPONDENT: NEW KWALlTY SWEET HOUSE & ORS.

DATE OF JUDGMENT05/12/1984

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) PATHAK, R.S.

CITATION:  1985 AIR  329            1985 SCR  (2) 284  1985 SCC  (1) 195        1984 SCALE  (2)960

ACT:      Prevention of Food Adulteration Act section 7 read with section 16,  scope of Whether the conviction can be recorded under section  7 read  with section 16 of the POFA act, even after, a quantity smaller than that required by the Rules to be sent  for analysis is sent for the purpose of analysis to the Public analyst.

HEADNOTE:      Prevention of Food Adulteration Rules requires the Food Inspector to  send 250  gms of suji (semolina) for analysis. On August 1, 1975 a Food Inspector purchased a sample of 200 gms of suji from the respondent-accused and sent the same to the Public Analyst for analysis. Though the report indicated that the  sample was found to contain excessive moisture and ash, the  Metro  politan  Magistrate,  Delhi  acquitted  the accused by  his judgment  dated July  19, 1977 on the ground that the  Food Inspector  did not send the required quantity of the  adulterated article  for analysis. The High Court of Delhi  dismissed  the  revision  application  filed  by  the Municipal Corporation.       Hence the appeal by special leave.       Dismissing the appeal, the Court, ^      HELD:  The  fact  that  a  lesser  quantity  than  that prescribed  by   the  Rules  is  sent  for  analysis  cannot constitute an  impediment in  the  conviction  of  a  person accused of selling adulterated food, so long as the quantity sent for  analysis is  sufficient to  enable the  Analyst to make a  satisfactory analysis  according to  accepted tests. Therefore, a  conviction could  be recorded  under section 7 read with  section 16 of the Prevention of Food Adulteration Act.                                                     [285F-G]  State  of Kerala  V. Alaserry  Mohammed [1978] 2 S.C.R. 820 followed. 285

JUDGMENT:       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal

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                     No. 114 of 1979             From the Judgment and order dated the 28th March 1978 of the Delhi High Court in Criminal Misc. No. 399/78. Randhir Jain Appellant.          The order of the Court was delivered by           CHANDRACHUD, C.J. As long back as on August 1,1975 a Food  Inspector purchased a sample of suji (Semolina) from the respondent accused, which was found to contain excessive moisture and ash. The learned Metropolitan Magistrate, Delhi acquitted the accused by his judgment dated July 19, 1977 on the ground that the Food Inspector did not send the required quantity of  the adulterated  article to  the Public Analyst for analysis. The Rules required the i the Food Inspector to send 250 gms. Of suji for analysis, whereas he sent only 200 gms.  The   High  Court  of  Delhi  dismissed  the  revision application filed  by the  Municipal  Corporation  of  Delhi summarily.              The  learned Metropolitan Magistrate is clearly wrong in  the view  taken by  him, from which it must follow that the  High Court  was not  justified in  dismissing  the revision application  summarily.  The  fact  that  a  lesser quantity than  that prescribed  by the  Rules  is  sent  for analysis cannot  constitute an  impediment in the conviction of a  person accused of selling adulterated food, so long as the quantity  sent for  analysis is sufficient to enable the Analyst  to   make  a  satisfactory  analysis  according  to accepted tests.  We do  not, how  ever, propose to interfere with the order of acquittal since, this appeal was filed not so much  for the  purpose of  securing the conviction of the accused but  for the  purpose of  obtaining a  decision from this Court  on the  question whether  a conviction  could be recorded under  section  7  read  with  section  16  of  the Prevention of  Food Adulteration  Act even  if,  a  quantity smaller than  that required   by  the Rules  to be  sent for analysis is  sent for  the purpose of analysis to the Public Analyst. That question was decided long 286 back in  State of Kerala v. Alaserry Mohammed.(l) Therefore, though the  view taken by the courts below is unsupportable, we do  not propose  to interfere  with  the  ultimate  order passed by them.      The appeal is accordingly dismissed. S. R.                                       Appeal dismissed [1978]2 S.C.R.820 287