Ramdas Bhikaji Chaudhari Vs. Sada Nand
& Ors  INSC 195 (3 October 1979)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
SEN, A.P. (J)
CITATION: 1980 AIR 126 1980 SCR (1) 849 1980
SCC (1) 550
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.
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
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 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,
 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.
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.
V. N. Ganpule for the appellant.
N.N. Keshwani and Ramesh N. Keshwani for the
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 however, 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 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
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
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
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'
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.