Honble AGARWAL, J. – A complaint (Ex.P.6) was filed by the Enforcement Inspector with the allegation that at the time of inspection of the shop of M/s J. Nagpal & Company, certain tyres and tubes were found in the stock, but neither the stock position nor the prices of the saleable goods had been displayed by the dealer at the shop. The Complaint was made against the firm M/s J. Nagpal & Com- pany, Amer Road, Jaipur and also its proprietors Mr. Keshwanand Nagpal and the proprietors son Mr. Rajendar Kumar Nagpal. At the time of inspection by the Enforcement Inspector, it was Shri Rajendra Kumar, who was found at the shop because his father, who was the proprietor of the business, was away to Shri Ganganagar due to illness of his mother. 22 tyres of different sizes and 6 tubes were found in stock and these were taken into possession by the Enforcement Inspector under Seizure Memo (Ex.P.2) because the stocks had not been displayed nor the prices had been shown on the notive board as required under the Rajasthan Trade Articles (Licensing and Control ) Order, 1980.

(2) The goods, so seized, were given on Supurdginama to Shri Yogesh Kumar (PW.2) under Ex. P.3 Copies of the application for the grant of licence, filed by the dealer (Ex. P.5) and the license granted in respect of Petroleum Products (Ex.P.4) were also filed. During trial, 3 witnesses were examined by the prosecution. The accused persons also produced 3 witnesses in defence, but the Trial Judge acquitted the 3 accused of the charge u/s 3/7 of the E.C. Act on the ground that no indepen- dent and respectable inhabitant had been called by the Enforcement Inspector at the time of inspection and seizure of goods. It was also observed that the proprietor of the firm was not present at the shop and no sale had been effected on the date of inspection (1/4/1983). Certain bills had been issued by the dealer in respect of sales, but no bill had been issued on the date of inspection. It was also held by the Trial Judge that the dealer had closed his books of account on 31 sat of March, 1983 and for that reason no business transactions had been affected on 1/4/1983, the date of inspection.

(3) The order of acquittal has been challenged with the plea that there was no illegality even if two witnesses of the locality were not called by the Enforce- ment Inspector at the time of inspection and seizure. It was at the most, an irregularity. It is argued on behalf of the State that the requirement of law that two respectable and independent witnesses should normally be called, was only a directory provision and not a mandatory requirement. It has also been pointed out that the absence of proprietor at the time of inspection cannot help the accused- dealer because when the shop was open and business was being done by the son of the proprietor, it made no difference that the proprietor, was away, to Shri Ganganagar.

(4) Reliance has been placed by the learned Public Prosecutor on the decision of the Supreme Court in the case of State of Kerala etc. vs. Alasserry Mohammed etc. (1). It was a case where certain samples of food were taken in possession, but it was less than the prescribed quantity. It was held that of the sample, sent to the Public Analyst, was sufficient for analysis and if certain report was submitted by the Public Analyst, it would not be treated to be a mandatory requirement. Rule 22 of the Food Adulteration Rules was held to be directory and not mandatory. From the facts, it appears that the quantity of the sample was found to be less than the prescribed, quantity, it is in this context that Rule 22, laying down the quantity of the sample, was held to be directory and not mandatory. On the peculiar facts of the case, I do not find that the same decision would apply to the facts of the case of the appellant here. In other case State of Maharashtra vs. Natwarlal Damordardas Soni(2), aquestion had arisen about the smuggling of gold in India. Section 135 (1), Customs Act had been

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