N Criminal Appeal No 329 of 1979
850 Appeal by Special Leave from the Judgment and order dated 2 9 1976 of the Bombay High Court in Crl
Rev Appln
No 31075
V N Ganpule for the appellant
NN Keshwani and Ramesh N Keshwani for the Respondents 1 2
M C Bhandare and M N Shroff for Respondent No 3
The Judgment of the Court was delivered by FAZAL ALI J
This appeal by special leave is directed against a judgment of the Bombay High Court acquitting the respondents of the charge under section 161 a i of the Prevention of Food Adulteration Act
The respondents were convicted under section 161ai of the Prevention of Food Adulteration Act and sentenced to 6 months  RI and fined Rs 2000 as modified by the Sessions Judge in appeal
The High Court accepted all the facts proved in the case and found that the confectionary drops sold by the accused to the Food Inspector by way of sample contained coal tar dye
The High Court however ac quitted the respondents only on the ground that under Rule 22 as it stood before the amendment required that the minimum quantity of 500 gms
of the sample seized should be sent for analysis
This rule was subsequently amended by Rule 22B
In fact as pointed by this Court in the case of State of Kerala etc
vs Alassary Mohammed etc
the amendment by Rule 22B was not really an amendment in the strict sense of the term but merely a clarification of what was really intended by the original Rule 22
The High Court how ever on the basis of the decision of this Court in the case of Rajal Das Guru Namal Pamanani vs State of Maharashtra held that as the quantity of the sample sent to the Public Analyst was below 500 gms
 therefore the respondents were entitled to an acquittal on this ground alone
The High Court accordingly allowed the revision and acquitted the respondents
Thereafter the appellant obtained special leave of this Court and hence this appeal
A few admitted facts may be mentioned here
In the first place the decision of this Court in Rajal Das Guru Namal Pamanani vs State of Maharashtra supra was reconsidered by a larger bench of 5 Judges who over ruled the aforesaid decision in the case of State of Kerala etc
vs Allassary Mohammed etc
supra and held that Rule 22 was purely directory and must always be construed to have been so
It was further held that it was for the Public Analyst to say whether the quantity of the sample sent to him was sufficient or not for making necessary analysis
In view of the law laid down by the latest decision of this Court referred 851 to above it is obvious that the acquittal by the High Court was legally erroneous
Learned counsel appearing for the respondents raised three points before us
In the first place he submitted that as at the time when the respondents were acquitted the previous decision of the Court in Rajal Das Guru Namal Pamanani s case held the field it is not a fit case where we should exercise our discretionary power under article 136 to set aside the order of acquittal particularly when the case was launched against the respondents as far back as 1971
Secondly it was contended that even though the previous decision of this Court was over ruled by this Court in the case of State of Kerala vs Alassary Mohammed supra yet the previous decision was the law laid down by this Court under article 141 of the Constitution and therefore the judgment of the High Court was correct
As regards the first point we think that there is absolutely no substance in it
The later decision of this Court in State of Kerala vs Alassary Mohammed supra has clearly decided the point of law against the view taken by the High Court and as a logical consequence thereof the acquittal of the respondents was wrong on a point of law
This appeal therefore is clearly concluded by the aforesaid decision and the question of our exercising discretion particularly in cases of economic offenders does not arise
This first argument is therefore over ruled
Secondly it was argued that even if the decision in Alassary Mohammed case supra holding that Rule 22 was directory and the mere fact that the quantity of sample fell below the quantity required by the Rules did not vitiate the conviction yet this Court refused to interfere in that case and on a parity of the reasons given in that case we should also not interfere
Reading the decision as a whole we find that while declaring the law this Court refused to interfere on special ground peculiar to the cases before them
In the first place the case before them was really a test case and the majority of the counsel appearing for the State clearly conceded that they were not at all serious in challenging the acquittal of the respondents but were more concerned with the interpretation to be given to Rule 22
It is true that in some of the cases from Bombay the counsel showed some anxiety for obtaining conviction but having regard to the peculiar facts of that case this Court considered that it was not necessary to interfere
This will be clear from the observations made by this Court which may be extracted thus In three Kerala cases Mr section V Gupte appearing with Mr K R Nambiar and Mr Sudhakran stated before us 852 that the State was interested more in the correct enunciation of the law than in seeing that the respondents in these 
appeals are convicted
They were not anxious to prose cute these matters to obtain ultimate conviction of the respondents
A large number of the other appeals are by the Municipal Corporation of Delhi for whom the Attorney General appeared assisted by Mr B P Maheshwari
Although a categorical stand was not taken on behalf of the appellants in these appeals as the one taken in the Kerala cases eventually the learned Attorney General did not seriously object to the course indicated by us
In the few t Bombay appeals Ms V section Desai and M N Shroff showed their anxiety for obtaining ultimate convictions of the offenders but we do not find sufficient reason for passing a different kind of order in the Bombay appeals
In similar situations in the case of the State of Bihar vs Hiralal Kejriwal and Anr
this Court refused to exercise its discretionary jurisdiction under article 136 of the Constitution and did not order the continuance of the criminal proceeding any further
In Food Inspector Calicut Corp vs Cherukattil Gopalan  Anr
this Court said at page 730 But in view of the fact that the appellant has argued the appeal only as a test case and does not challenge the acquittal of the respondents we merely set aside the order and judgment of the High Court
But we may make it clear that apart from holding the respondents technically guilty we are not setting aside the order of acquittal passed in their favour
 Thus the above observations clearly show that this Court was not interfering in those cases mainly on two grounds Firstly that the cases were really test cases which only invited a final decision of this Court on the interpretation of Rule 22
Secondly that most of the counsel appearing for the prosecution did not challenge the order of acquittal passed by the High Court
That is why this Court took care to rely on an earlier decision of this Court reported in Cherukattil Gopalan s case supra where this Court while laying down the law on test cases refused to set aside the order on the ground that the acquittal was not challenged by the prosecution
Neither of the two grounds are applicable to the present case
It is not a test case 853 at all
A large number of cases had already been decided in accordance with the decision given by this Court in Alassary Mohammed s case supra
Secondly the appellant has vehemently challenged the acquittal of the respondents and urged before us that the acquittal of the respondents should be set aside and the respondents should be convicted
Thus the second point raised by counsel for the appellant also does not appear to be tenable
Lastly it was argued that under article 141 since the earlier case decided by this Court in Pamanani s case supra held the field it must be held that it was the law laid down by this Court under article 141 of the Constitution
It is well settled that whenever a previous decision is over ruled by a larger bench the previous decision is completely wiped out and article 141 will have no application to the decision which has already been over ruled and the court would have to decide the case according to law laid down by the latest decision of this Court and not by the decision which has been expressed overruled
This contention also therefore must fail
Thus for the reasons given above we hold that the judgment of the High Court is vitiated by clear error of law and cannot be sustained
The next question that remains for determination is as to what is the sentence which would be imposed on the respondents if their acquittal is reversed
In the instant case we find that the respondents were prosecuted in the year 1971 and ultimately acquitted by the High Court in 1976
After the acquittal remained in force for three years the matter has come up before us
In these circumstances therefore the ends of justice do not require that the respondents should be sent back to jail
Mr Ganpule pointed out that so far as respondent No 1 Sada Nand was concerned he had a previous conviction to his credit and so he deserved jail sentence
As the previous conviction was 7 years old and today it will be about 15 years old we do not think that we should take these facts into consideration while imposing the sentence on the respondent
For the reasons therefore we would allow this appeal and set aside the order of the High Court and convict the respondents under Sec
161ai of the Prevention of Food Adulteration Act and sentence the respondents to fine of Rs 2000 each in default 6 months  RI
In view of the undertaking given by the counsel for the respondents that they will be careful in future we do not choose to pass the consequential order under Sec
161 d
PBR Appeal allowed


Summary:
The respondents were convicted and sentenced on a charge of contravention of section 161ai of the Prevention of Food Adulteration Act
Purporting to follow the decision of this Court in Rajlal Das Pamnani s case the High Court held that since the quantity of the sample sent to the Public Analyst was below 500 gms
the respondents were entitled to acquittal and allowed their revision petitions
The appellant the Food Inspector who prosecuted the respondents came in appeal to this Court under article 136 of the Constitution
It was contended on behalf of the respondents that 1 this was not a fit case for exercise of discretionary powers under article 136 and 2 since at the relevant time the decision of this Court in Pamnani s case was the law declared by this Court it was that decision which should be Applied to this case
Allowing the appeal  HELD Acquittal of the respondent by the High Court was erroneous
853 D 1
In Alassary Mohammed the cases which this Court was considering were really test cases which only invited a final decision of this Court on the interpretation of r 22
Most of the counsel appearing for the prosecution did not challenge the order of Acquittal passed by the High Court
While laying down the law on test cases this Court refused to set aside the order on the ground that the acquittal was not challenged by the prosecution
851 G The present case is not a test case
Since Alassary Mohammed has decided the point of law against the view of the High Court the acquittal of the respondents by the High Court was wrong on a point of law
The question of exercising discretion particularly against economic offenders does not arise
851 D 2
In Alassary Mohammed s case this Court overruling its earlier decision in Rajlal Pamnani s Case held that the amendment made to r 22 by introducing r 22B was not really an amendment in the strict sense of the term but merely a clarification of what was intended by the original r 22 that r 22 was directory and that it was for the Public Analyst to say whether the quantity of sample sent to him was sufficient or not for making necessary analysis
850 E State of Kerala vs Alassary Mohammed explained
Whenever a previous decision of this Court is overruled by a larger bench the previous decision is completely wiped out and the court would have to decide all subsequent cases according to the law laid down by the later decision