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PETITIONER: RAMDAS BHIKAJI CHAUDHARI

       Vs.

RESPONDENT: SADA NAND & ORS.

DATE OF JUDGMENT03/10/1979

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA SEN, A.P. (J)

CITATION:  1980 AIR  126            1980 SCR  (1) 849  1980 SCC  (1) 550

ACT:      Prevention of Food Adulteration Act-S. 16(1)(a)(i)-High Court followed  an earlier  decision of  Supreme  Court  and acquitted the  respondents-Earlier  decision  over-ruled  by Supreme Court-Effect of previous decision.

HEADNOTE:      The respondents  were  convicted  and  sentenced  on  a charge of  contravention of s. 16(1)(a)(i) of the Prevention of Food  Adulteration Act. Purporting to follow the decision of this  Court in  Rajlal Das  Pamnani’s case the High Court held that  since the  quantity of  the sample  sent  to  the Public Analyst  was below  500  gms.  the  respondents  were entitled to  acquittal and allowed their revision petitions. The  appellant,   the  Food  Inspector  who  prosecuted  the respondents, came  in appeal to this Court under Art. 136 of the Constitution.      It was  contended on behalf of the respondents that (1) this was not a fit case for exercise of discretionary powers under Art.  136 and  (2) since  at  the  relevant  time  the decision of  this  Court  in  Pamnani’s  case  was  the  law declared by  this Court it was that decision which should be Applied to this case.      Allowing the appeal ^      HELD: Acquittal of the respondent by the High Court was erroneous. [853 D]      1. In  Alassary Mohammed the cases which this Court was considering were  really test  cases which  only  invited  a final decision of this Court on the interpretation of r. 22. Most of  the counsel  appearing for  the prosecution did not challenge the  order of  Acquittal passed by the High Court. While laying  down the  law on test cases this Court refused to set  aside the order on the ground that the acquittal was not challenged by the prosecution. [851 G]      The present  case is  not a  test case.  Since Alassary Mohammed has  decided the  point of  law against the view of the High Court, the acquittal of the respondents by the High Court  was  wrong  on  a  point  of  law.  The  question  of exercising   discretion    particularly   against   economic offenders does not arise. [851 D]      2. In  Alassary Mohammed’s  case this Court, overruling

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its earlier  decision in Rajlal Pamnani’s Case held that the amendment made  to r.  22, by  introducing r.  22B, was  not really an  amendment in  the strict  sense of  the term  but merely a  clarification of what was intended by the original r. 22,  that r.  22 was  directory and  that it  was for the Public Analyst to say whether the quantity of sample sent to him was  sufficient or  not for  making necessary  analysis. [850 E]      State of  Kerala v. Alassary Mohammed, [1978] 2 SCR 820 explained.      3. Whenever  a  previous  decision  of  this  Court  is overruled  by  a  larger  bench  the  previous  decision  is completely wiped  out and the court would have to decide all subsequent cases according to the law laid down by the later decision.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 329 of 1979. 850      Appeal by  Special Leave  from the  Judgment and  order dated 2-9-1976  of the Bombay High Court in Crl. Rev. Appln. No. 310/75.      V. N. Ganpule for the appellant.      N.N.  Keshwani   and  Ramesh   N.  Keshwani   for   the      Respondents 1-2.      M. C. Bhandare and M. N. Shroff for Respondent No. 3.      The Judgment of the Court was delivered by      FAZAL ALI,  J.-This appeal by special leave is directed against a  judgment of  the Bombay High Court acquitting the respondents of  the charge  under s.  16(1) (a)  (i) of  the Prevention of  Food Adulteration  Act. The  respondents were convicted under  s. 16(1)(a)(i)  of the  Prevention of  Food Adulteration Act  and sentenced  to 6 months’ R.I. and fined Rs. 2000/-  as modified by the Sessions Judge in appeal. The High Court  accepted all  the facts  proved in  the case and found that  the confectionary  drops sold  by the accused to the Food  Inspector by way of sample contained coal tar dye. The High  Court however,  ac quitted the respondents only on the ground  that under  Rule  22  as  it  stood  before  the amendment required  that the minimum quantity of 500 gms. of the sample seized should be sent for analysis. This rule was subsequently amended by Rule 22B. In fact as pointed by this Court in  the case  of State of Kerala etc. etc. v. Alassary Mohammed etc.  etc. the amendment by Rule 22B was not really an amendment  in the  strict sense  of the term but merely a clarification of  what   was really intended by the original Rule 22.  The High  Court how  ever, on  the  basis  of  the decision of  this Court  in the case of Rajal Das Guru Namal Pamanani v.  State of  Maharashtra held that as the quantity of the sample sent to the Public Analyst was below 500 gms., therefore, the  respondents were entitled to an acquittal on this ground  alone. The  High Court  accordingly allowed the revision  and  acquitted  the  respondents.  Thereafter  the appellant obtained  special leave  of this  Court and  hence this appeal.      A few  admitted facts  may be  mentioned here.  In  the first place  the decision  of this  Court in  Rajal Das Guru Namal  Pamanani   v.  State   of  Maharashtra,  (supra)  was reconsidered by  a larger  bench of  5 Judges who over-ruled the aforesaid  decision in  the case of State of Kerala etc. etc. v.  Allassary Mohammed  etc. etc. (supra) and held that Rule 22 was purely directory and must always be construed to

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have been so. It was further held that it was for the Public Analyst to  say whether  the quantity  of the sample sent to him was  sufficient or not for making necessary analysis. In view of  the law  laid down  by the  latest decision of this Court referred 851 to above, it is obvious that the acquittal by the High Court was legally erroneous.      Learned counsel  appearing for  the respondents  raised three points before us. In the first place he submitted that as at  the time  when the  respondents  were  acquitted  the previous decision  of the  Court in  Rajal  Das  Guru  Namal Pamanani’s case  held the  field, it is not a fit case where we should exercise our discretionary power under Art. 136 to set aside  the order of acquittal particularly when the case was launched  against the  respondents as  far back as 1971. Secondly it  was contended  that even  though  the  previous decision of  this Court  was over-ruled by this Court in the case of  State of  Kerala v.  Alassary Mohammed (supra), yet the previous  decision was  the law  laid down by this Court under Art.  141 of  the  Constitution  and,  therefore,  the judgment of the High Court was correct. As regards the first point we  think that there is absolutely no substance in it. The later  decision of  this Court  in State  of  Kerala  v. Alassary Mohammed  (supra) has  clearly decided the point of law against  the view  taken by  the High  Court  and  as  a logical consequence thereof the acquittal of the respondents was wrong  on a  point of  law.  This  appeal  therefore  is clearly concluded by the aforesaid decision and the question of  our  exercising  discretion  particularly  in  cases  of economic offenders  does not  arise. This first argument is, therefore, over-ruled.      Secondly it  was argued  that even  if the  decision in Alassary Mohammed  case (supra)  holding that  Rule  22  was directory and the mere fact that the quantity of sample fell below the quantity required by the Rules did not vitiate the conviction yet  this Court refused to interfere in that case and on  a parity of the reasons given in that case we should also not  interfere. Reading the decision as a whole we find that while declaring the law this Court refused to interfere on special  ground peculiar to the cases before them. In the first place  the case before them was really a test case and the majority  of the counsel appearing for the State clearly conceded that  they were  not at  all serious in challenging the acquittal  of the  respondents but  were more  concerned with the  interpretation to  be given to Rule 22. It is true that in  some of  the cases  from Bombay  the counsel showed some anxiety  for obtaining  conviction but having regard to the peculiar  facts of  that case this Court considered that it was  not necessary  to interfere. This will be clear from the observations  made by  this Court which may be extracted thus:           "In three  Kerala cases  Mr. S. V. Gupte appearing      with Mr.  K. R. Nambiar and Mr. Sudhakran stated before      us 852      that the  State was  interested  more  in  the  correct      enunciation  of   the  law  than  in  seeing  that  the      respondents in these . appeals are convicted. They were      not anxious  to prose  cute  these  matters  to  obtain      ultimate conviction  of the respondents. A large number      of the  other appeals  are by the Municipal Corporation      of  Delhi   for  whom  the  Attorney  General  appeared      assisted  by   Mr.  B.   P.  Maheshwari.   Although   a      categorical stand  was  not  taken  on  behalf  of  the

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    appellants in  these appeals  as the  one taken  in the      Kerala cases,  eventually, the learned Attorney General      did not seriously object to the course indicated by us.      In the  few t Bombay appeals M/s. V. S. Desai and M. N.      Shroff showed  their  anxiety  for  obtaining  ultimate      convictions of  the  offenders,  but  we  do  not  find      sufficient reason for passing a different kind of order      in the  Bombay appeals.  In similar  situations in  the      case of the State of Bihar v. Hiralal Kejriwal and Anr.      this  Court   refused  to  exercise  its  discretionary      jurisdiction under Art. 136 of the Constitution and did      not order  the continuance  of the  criminal proceeding      any  further.  In  Food  Inspector,  Calicut  Corp.  v.      Cherukattil Gopalan  & Anr.  this Court  said  at  page      730:-           "But in  view of  the fact  that the appellant has      argued the  appeal only  as a  test case  and does  not      challenge the  acquittal of  the respondents, we merely      set aside the order and judgment of the High Court. But      we may  make it  clear  that  apart  from  holding  the      respondents technically  guilty,  we  are  not  setting      aside the order of acquittal passed in their favour."      Thus the  above observations  clearly  show  that  this Court was  not interfering  in those  cases  mainly  on  two grounds: Firstly,  that the  cases were  really  test  cases which only  invited a  final decision  of this  Court on the interpretation of  Rule  22.  Secondly,  that  most  of  the counsel appearing  for the prosecution did not challenge the order of  acquittal passed  by the  High Court.  That is why this Court  took care to rely on an earlier decision of this Court reported  in Cherukattil  Gopalan’s case (supra) where this Court  while laying  down the law on test cases refused to set  aside the order on the ground that the acquittal was not challenged  by  the  prosecution.  Neither  of  the  two grounds are applicable to the present case. It is not a test case 853 at all.  A large number of cases had already been decided in accordance with the decision given by this Court in Alassary Mohammed’s  case   (supra).  Secondly   the  appellant   has vehemently challenged  the acquittal  of the respondents and urged before us that the acquittal of the respondents should be set  aside and  the respondents should be convicted. Thus the second  point raised  by counsel  for the appellant also does not  appear to  be tenable.  Lastly it  was argued that under Art.  141 since the earlier case decided by this Court in Pamanani’s  case (supra)  held the field, it must be held that it  was the  law laid down by this Court under Art. 141 of the  Constitution. It  is well  settled that  whenever  a previous decision  is  over-ruled  by  a  larger  bench  the previous decision  is completely wiped out and Art. 141 will have no  application to  the decision which has already been over-ruled, and  the court  would have  to decide  the  case according to  law laid  down by  the latest decision of this Court and  not by  the decision  which  has  been  expressed overruled. This  contention also  therefore, must fail. Thus for the reasons given above we hold that the judgment of the High Court  is vitiated  by clear error of law and cannot be sustained.      The next  question that remains for determination is as to what  is the  sentence which  would  be  imposed  on  the respondents if  their acquittal  is reversed. In the instant case we  find that  the respondents  were prosecuted  in the year 1971  and ultimately  acquitted by  the High  Court  in 1976. After  the acquittal remained in force for three years

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the matter  has come  up before  us. In these circumstances, therefore, the  ends of  justice do  not  require  that  the respondents should be sent back to jail. Mr. Ganpule pointed out that  so far as respondent No. 1 Sada Nand was concerned he had  a previous  conviction  to  his  credit  and  so  he deserved jail  sentence. As  the previous  conviction was  7 years old and today it will be about 15 years old, we do not think that  we should  take these  facts into  consideration while imposing  the sentence  on  the  respondent.  For  the reasons, therefore, we would allow this appeal and set aside the order  of the  High Court  and convict  the  respondents under  Sec.   16(1)(a)(i)  of   the   Prevention   of   Food Adulteration Act and sentence the respondents to fine of Rs. 2,000/- each, in default 6 months’ R.I..      In view of the undertaking given by the counsel for the respondents that  they will  be careful  in future we do not choose to  pass the   consequential  order under  Sec. 16(1) (d). P.B.R.    Appeal allowed. 854