The State Government has the right to appeal against an order of acquittal in any case, including cases instituted upon a complaint, subject to the limitation imposed by Sub-section (5) of Section 417 of the Code of Criminal Procedure.

B.P. Beri, J.-The Sub-divisional Magistrate, Salumber acquitted Kapoorchand by his judgment dated 12th March, 1965 in a case under Sections 7 and 16 of the Prevention of Food Adulteration Act. The State of Rajasthan has come up in appeal against this acquittal.

2. Thematerial facts which have given rise to this appeal are: Kapoorchand is a shop keeper in village Veerpur, who sells amongst other things ‘Ghee’ On June 19, 1963 Food Inspector Durga Shanker made a test purchase from his shop, filled in three phials out of the ‘Ghee’ purchased by him One of these phials he handed over to the accused, and sent another to the Public Analyst According to the report from the Public Analyst dated 6th August, 1963 that sample was found to be adulterated with ‘Vanaspati’. After taking necessary consent from the Local Authorities the accused was prosecuted for an offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act.

3. The learned Magistrate, who tried the accused found that the two Motbirs in whose presence the prosecution alleged the action of taking samples did not support the prosecution and therefore it was not proved by the prosecution that the sample which was sent to the Public Analyst was taken from the accused and thus the guilt was not brought home to the accused. He accordingly acquitted him.

4. Mr. G.M. Mehta, learned Deputy Government Advocate submits that the two Motbirs turned hostile to the prosecution and their hostility is evident from the fact that in the recovery memo itself one of the witnesses had by his own hand made an endorsement that the entire proceedings were done in his presence. In these circumstances there was no reason why the Food Inspector ought not to be believed. He submits that the accused ought to have been convicted.

5. Mr. Shishodhiya, learned Counsel for the accused submitted that a complaint in the case having been filed by the Food Inspector it was the Food Inspector alone, who could have preferred an appeal against the acquittal and it was not competent for the State of Rajasthan to submit the present appeal. The further submission is that the Motbirs have clearly stated in their depositions that the Food Inspector had not taken the sample of’Ghee’ in their presence and they had arrived later. He should have called one or more persons to be present at the time when such action was taken and could have taken his or their signatures as required by Section 10(7) of the Act. According to the depositions of the witnesses this provision of law was not complied with and therefore the order of acquittal need not be described. His next submission is that the Food inspector does not state in his deposition that he had sealed the three phials containing the samples. He merely contented himself by saving that he had closed them and one sealed phial was given to the accused. Further the phial which was sent to the Public Analyst may or may not have been sealed but no memorandum of impression of the seal as required by Rule 18 of the Prevention of Food Adulteration Rules, 1955 was sent to the Public Analyst enabling him to compare and satisir himself that the seal was the same as the one, if any, put on the phial sent to him Therefore there can be no sanctity attached to the result reached by the Public Analyst. Lastly he argued that the complaint was filed very late almost a year after the date of taking the sample, and this caused prejudice to the accused.

6. It will be proper for me to decide the argument relating to Section 417 of the Code of Criminal Procedure

first. The relevant provisions which it is necessary to notice in in this connection read as follows:-“417(1)

Subject to the provisions of Sub section (5), the State Government may, in any ease, direct the Public

Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by

any Court other than a High Court.

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.(3) If such an order of acquittal is passed i