Rule 22 of the Prevention of Food Adulteration Rules, 1955 is directory and not mandatory, and non-compliance with the rule regarding the quantity of sample to be sent for analysis is not fatal to the prosecution if the quantity sent is sufficient for analysis and the Public Analyst finds it sufficient.

1. - Respondent Shanker Lal was tried for the offence Under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter to be referred as 'the Act') by the Chief Judicial Magistrate, Churu.

2. The respondent was tried on a complaint lodged by the Food Inspector Mangilal (PW 1) who had checked his shop on January 29,1974. The Inspector purchased red chillis powder from the respondent and after observing necessary formalities sent the sample to public analyst for examination. As per report of the public analyst Ex. P. 6 the sample was found to be adulterated. Thereafter, complaint was filed in the Court of the Chief Judicial Magistrate, Churu was proceeded with the trial as stated earlier. The learned Magistrate held the red chillis powder to be 'condiment' and not a 'spice' and therefore, came to the conclusion that sending of 150 gms. of sample instead of 200 gms. was in contravention of Rule 22 of the Prevention of Food Adulterotion Rules, 1955 (hereinafter to be referred as 'the Rules'). In view of that finding, the learned Chief Judicial Magistrate acquitted the respondent of the charge.

3. Being dissatisfied by that judgment, the State of Rajasthan after seeking permission from this Court has filed the present appeal.

4. I heard Mr. M.C. Bhati, learned Public Prosecutor for the State and Mr. S.R Singhi, learned Counsel for the accused respordent and carefully perused the record of the case.

5. The main question involved in the matter is whether the red chillis powder falls within the definition of 'spice' or 'condiment'. If it is 'spice', Item No. 17 of Rule 22 of the Rules would apply and 150 gms sample was sufficient for analysis. If it is 'condiment' then Item No. 23 "Food not specified would be attracted and the requirement of the sample would be 200 gms. There is difference of opinion in various High Courts on the point as to whether 'red chillis powder' is 'spice' or 'condiment' The view of the Gujarat High Court expressed in the case of Kalidas Damodar Das v. The State 1976 (I) FAC 117 is that chillis fall under the entry 'spices' at Sr. No. 17 of Rule 22 of the Rules. On the other hand the view taken by the Bombay High Court in the Case of Vithal Kallappa Shetty v. The State of Maharashtra 1976 (II) FAC 157 is that the chilly powder must fill under the last item viz. 'Foods not specified". The view of Delhi High Court in the case of Hans Raj v. The State 1977Cr LJ 92 was similar to the one expressed in Vithal Kullapaa Shetty's case 1976 (II) FAC 157 and chilly powder has been considered as a condiment and not a spice,

6. The question as to whether chillis powder is 'spice' or 'condiment' came for consideration before this Court in the case of State of Rajasthan v. Tejamal and his Lordship was pleased to hold that chillis powder is 'condiment' and not a 'spice' and as such falls under Item No. 23 of Rule 22 "Foods Mot specified" rather than under Item No. 17 of Rule 22. There being an authority of this Court on the point and to being in respectful agreement with the opinion expressed therein, it is held that the red chilly powder in the case on hand was a condiment and not a spice.

7. The next question emerging for consideration is whether there was non compliance of Rule 22 of the Rules and if so whether it is fatal for the prosecution. Being ''Foods Not Specified", the sample of 200 gms. chilly powder ought to have been sent for the purpose of analysis. This is Dot in dispute that only 450 gms. was sent for analysis purpose in this case and the order of acquittal by the learned Chief Judicial Magistrate is based on the ground of non-compliance of the Rule 22 with respect to the quantity to be sent for chemical analysis resulting into injustice to the accused respondent.

8. In order to appreciate the correctness of the finding of the learned Chief Judicial Magistrate petition of law as it stood at the relevant time and subsequent change in it will have to be looked into.

9. The sample was ta