( 1 ) THE prosecution case is that on 15th February 1971 at the restaurant of the accused which is known as Agrawal Restaurant food inspector Manubhai A. Pandya purchased Jalebi prepared in oil. It is the prosecution case that the oil used in Jabeli was not according to the prescribed standard and therefore the accused was prosecuted.

( 2 ) THE learned Magistrate acquitted the accused on two counts. One count was that the prosecution failed to prove that the public analyst was sent sufficient quantity of Jalebi to extract sufficient quantity of oil as per Rule 22 which says that 125 Gms. of edible oil shall be sent to the public analyst. This the learned Magistrate held on the strength of the judgment of the Supreme Court in Rajal Das Pamanani v. State of Maharashtra A. I. R. 1975 S C. 189 wherein it was held that the accused cannot be convicted unless sufficient quantity for analysis as laid down under Rule 72 is analysed. The second count was that there was no sufficient evidence to come to the conclusion that the jar or bottle in which the muddamal Jalebi was placed were cleaned and dried.

( 3 ) SO far as the first count of acquittal is concerned it is submitted by Miss Valikarimwala who appears for the appellant that the judgment is no longer a good law because by a later judgment viz. State of Kerala v. Alasserry Mohmmed A. I. R. 1978 S. C. 933 this judgment in A. I. R. 1975 S C. 189 is over-ruled. It is the submission of Miss Valikarimwala that even otherwise the requirement of sending the prescribed quantity of Jalebi is followed and also it is for the public analyst to say whether he can analyse with the given quantity or not. This arguments was advanced by her mainly because on behalf of respondent No. 1 it was attempted to be shown that according to the evidence of the public analyst Shri S. S. Bhatt Ex. 37 even though the sample of Jalebi of the quantity of 5go Gms. was sent to him which is in consonance with Rule 22 he had taken about 100 to 150 Gms. of Jalebi and it was powdered and then it was put in ethyl as it is the function of ethyl to separate oil from the other articles. It was therefore submitted that when only 100 to 150 Gms. of Jalebi powder might have been taken how can there be sufficient quantity for analysis because oil available therefrom would be hardly about 25 gms to 50 gms. Unfortunately no question is put to the public analyst as to how much quantity of oil was available. But even then reading the judgment of the Supreme Court in the case of State of Kerala v. Alasserry Mohammed it is very clear that the quantity now becomes immaterial. What is necessary is that whether it was possible for the public analyst to analyse the article or not. In this judgment it has been specifically observed as follows:-RULE 22 is directory and not mandatory. Applying the salutary principles of interpartition of statutes the use of the word shall in sub-sec. (3) of sec. 11 and in Rule 22 indicates on its face that an imperative duty has been cast upon the food inspector to send a sample in accordance with the prescribed rules. But the mere use of the word shall does not invariably lead to this result. The whole purpose and the context of the provision has to be kept in view for deciding the issue. The whole object of sec. 11 and Rule 22 is to find out by a correct analysis subject to further verifications and tests by the Director of the Central Laboratory or otherwise as to whether the sample of food is adulterated or not. If the quantity sent to the Public analyst even though it is less than that prescribed is sufficient and enables the Public Analyst to make a correct analysis then merely because the quantity sent was not in strict compliance with the Rules will not result in the nullification of the report and obliterate its evidentiary value. If the quantity sent is less it is for the public Analyst to see whether it is sufficient for the analysis or not. If he finds it insufficient here is