Judgment

DESAI, J.:- Dr. A. G. Ajwani, Dy. Health Officer of the petitioner - Municipal Corporation of Delhi - accompanied by an Inspector of C. B. I. and some Food Inspectors employed by the petitioner, visited the premises of the respondents where they being manufacturers of various articles of food stored the same for sale, and took number of samples of various spices like the red chillies kutti, haldi powder, rice kinki and red chillies whole as well as some others. These samples nine in all involved in the present petition, on analysis by the Public Analyst were found to be adulterated, the adulteration consisting of use of artificial coal tar dye, presence of foreign extraneous matter to the extent of 90%, ash in percentage higher than the permissible limit, etc. Initially the complaint was filed against respondent 1 but subsequently on collecting further evidence prosecution was launched against respondents 1 to 7. When the matter was being heard by the Metropolitan Magistrate, Delhi he discharged all the respondents observing that there was a breach of mandatory provision of Rule 22 of the Prevention of Food Adulteration Rules inasmuch as the minimum quantity necessary for analysis as prescribed in the relevant rule was not taken by way of sample by the Food Inspector. It was also observed that chilli powder is a condiment and not spice and, therefore, it. was incumbent upon the Food Inspector to have sent sample weighing 200 gms. for analysis to the Public Analyst, and that this having not been done, there was breach of the relevant rule and, therefore, also the respondents were entitled to be discharged. In reaching this conclusion he relied upon the decision in Rajaldas Guru Namal Pamnani v. The State of Maharashtra, (1975) 2 SCR 886. Therefore, he closed evidence for the prosecution, though the prosecution wanted to examine some more witnesses, and discharged the respondents.

2. The petitioner-corporation preferred a revision petition to the High Court of Delhi. By the time the High Court heard the matter, the decision in Rajaldass case was overruled by this Court in State of Kerala v. Alaserry Mohammed, (1978) 2 SCR 820, wherein this Court held that R. 22 is directory and so long as the quantity was sufficient for analysis by the Public Analyst, the prosecution cannot fail on the sole ground that the minimum quantity prescribed by the rule was not sent for analysis by the Public Analyst.

3. However, the High Court was of the opinion that the revision petition filed by the petitioner was barred by limitation in view of the fact that even though the petition was actually filed on November 29, 1977, by one Shri B. T. Singh, Advocate on behalf of the petitioner-Corporation, the requisite power of attorney was not filed and the same was returned for removing the objection and after removing the objection it was re-submitted on March 1, 1978, but in the meantime the limitation expired an February 1, 1978. The High Court further was of the opinion that as no application for condonation of delay was filed, the petition was liable to be dismissed as being barred by limitation. Hence this appeal by special leave.

4. In our opinion, the High Court was clearly in error in dismissing the reversion petition filed by the petitioner. The learned Magistrate discharged the accused relying upon a decision of this Court in Raja 1 dass case: (AIR 1975 SC 189) but when the matter was before the High Court the decision in Rajaldas case was clearly overruled and the decision in Alaserry Mohammeds case (AIR 1978 SC 933) held the field and if the law laid down in Alaserry Mohammeds Case was applied, the order of discharge passed by the learned Magistrate was utterly unsustainable. The High Court itself was aware of this fact and, therefore, the High Court ought to have set aside the order of discharge and directed further trial.

5. It, however, appears that the respondents contended that the revision petition was barred by limitation. Even this