JUDGMENT - V.D. TULZAPURKAR, J.:---Two separate prosecutions were launched against the same opponent accused (Shankarlal Girdharlal Oza) for the offences said to have been committed by him under section 7(i) read with section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954. In each of the cases he has been convicted and sentenced to pay a fine of Rs. 600/- in default to suffer rigorous imprisonment for two months and in the other to a fine of Rs. 200/- in default to suffer one month. At the instance of the Poona Municipal Corporation represented by the original complainant these two revisional applications have been filed in this Court, where enhancement of sentences is sought. Since the convictions were challenged by the accused in each of these cases before me. It will be necessary to set out briefly the facts giving rise to the two prosecutions. The opponent-accused, Shankarlal Girdharilal Oza, owns and conducts a fair price shope dealing in kirana, goods at Vaiduwadi, hadapsar, Poona. In the month of August 1973 complaints from consumers were received against the accused that the accused used to sell Dalda Vanaspati by mixing cotton seed oil therein. At the instance of the Medical Officer, Dr. Dongare, attached to the Poona Municipal Corporation, complainant Sadanand Nagesh Waikar, Food Inspector of Poona Municipal Corporation went to the shop of the accused on 9th of August, 1973 at about 1-30 p.m. The accused was present in the shop. The complainant called two Panchas and thereafter in their presence he told the accused that he was a Food Inspector and that he had come to purchase Vanaspati from his shop for Public Analysis. There were three open Vanaspati tins in the shop which contained Vanaspati offered for sale by the accused to the consumers. The complainant purchased 600 g. of Vanaspati from the accused from one tin and paid Rs. 4.95 p. to the accused for the same. Another sample weighting 600 g. of Vanaspati was also purchased by him form another tin form the accused. In respect of both these samples purchased, the complainant followed usual procedure viz. The complainant purchased 600 g. of Vanaspati from the accused from one tin and paid Rs. 4.95 p. to the accused for the same. Another sample weighting 600 g. of Vanaspati was also purchased by him form another tin form the accused. In respect of both these samples purchased, the complainant followed usual procedure viz. he gave necessary notice and intimation to the accused that the samples were purchased for analysis, he obtained receipts in respect of payments made to the accused; each of the samples was devided into three equal parts and those three parts of each sample were put in different bottles and these bottles were sealed and labelled according to the rules. A Panchanama of all this was made by the complainant in the presence of the panchas. One bottle pertaining to the first sample and another bottle pertaining to the second sample were given to the opponent-accused by the complainant, in token whereof he obtained his signature and on the very day he sent two sample bottles-one of each sample taken together with the requisite memorandum for each to the Public Analyst, Poona for analysis. A copy of the memorandum and the impression of the seal in each case were also sent in separate covers. On receipt of the reports from the Public Analyst, it was found that both the samples were adulterated. In the case of the first sample (subject-matter of Criminal Case No. 4876 of 1973) it was found to be adulterated inasmuch as melting point was 25.50C. i.e. it was less than the prescribed melting point should be between 31. 00C. and 37.00C. as per the Prevention of Food Adulteration Rules, 1955. The second sample (which was the subject matter of Criminal Case No. 4877 of 1973) was found to be adulterated inasmuch as the melting point thereof was 11.00C. After completing the investigation and after obtaining the necessary sanction to prosecute the accused, in respect of two samples two separate criminal complainants were filed against the accused, one being Criminal Case No. 4876 of 1973 and the other being Criminal Case No. 4877 of 1973 respectively. In each of the cases the accused was charged with having committed the offence under section 7(i) read with section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954. In each of the cases the accused was charged with having committed the offence under section 7(i) read with section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954. In each of the two cases, the accused denied having committed the offence with which he was charged. His defence was common, namely, the tins containing Vanaspati, which were in the shop and which were meant for sale had been purchased by him from a licensed dealer viz. Lunkad Brothers and that he had purchased the same under the usual warranty an as such he was not responsible for any adulteration, that was found in the samples. In other words, he set up a defence under section 19(2) of the Prevention of Food Adulteration Act, 1954. At the trial, the prosecution led oral evidence of the complainant and the Panchas and documentary evidence produced included the Public Analysts reports. It appears that the accused disputed the correctness of the reports of the Public Analyst in each of the cases and made a application to send one of the samples to the Director of Central Food Laboratory, Calcutta. This request was granted by the learned Magistrate, the samples were got tested from the Director of Central Food Laboratory, Calcutta, whose certificates were produced at the trial. The certificate of the Director produced in Cri. Case No. 4876/1973 showed that the melting point of the sample was 39.40 C i.e. was in excess of the prescribed standard melting point, while the certificate of the director in the other case (No. 4877) showed that the melting point of the second sample was 23.90 C. i.e. less than the prescribed standard. The accused examined the Public Analyst, Poona as his witness; but neither he nor the prosecutor sought any clarification as to how there was a difference in the melting points as found by the witness (Public Analyst, Poona) and as found by the Director. It may be stated that the Public Analyst did not mention either in his reports or in his evidence as to what method was employed by him for finding out the melting point of the samples but the certificates of the Direct-showed that he had employed the Capillary Slip Method (mentioned in the Rules) for determining the melting point. It may be stated that the Public Analyst did not mention either in his reports or in his evidence as to what method was employed by him for finding out the melting point of the samples but the certificates of the Direct-showed that he had employed the Capillary Slip Method (mentioned in the Rules) for determining the melting point. On appreciation of the evidence, that was led before him, the learned Magistrate came to the conclusion that the accused had failed to substantiate he is defence that he had purchased Vanaspati in question from a licensed dealer under a warranty as suggested by him. He took the view that the evidence led by the accused did not show that he had purchased the tins of Vanaspati from M/s. Lunkad Brother, but that the defence witness examined in that behalf had sold it to some third party. Moreover, the learned Magistrate also felt that the accused had failed had failed to establish that he had stored for sale and actually sold the Vanaspati in the same condition, in which he could be said to have purchased from the licensed dealer. He, therefore, negatived the defence of the accused and after accepting the prosecution evidence held that the accused had sold in each case adulterated Vanaspati naturally relying upon the Directors certificates, which superseded the Public Analysts Reports under the provisions of section 13 of the Act. In case No. 4876 of 1973 he sentenced him to pay fine of Rs. 600/- and in default directed him to suffer simple imprisonment for two months. In the other case (Criminal Case No. 4877 of 1973) he sentenced him to pay a fine of Rs. 200/- and in default directed him to suffer simple imprisonment for one year. It is these sentences, which are sought to be enhanced by the Municipal Corporation in these revision applications. On the other hand, Mr. Vyas appearing for the accused has challenged the convictions in both these cases before me. 5. While challenging the convictions, Mr. Vyas has raised common grounds that will apply equally to both the cases and hence I am disposing of both revisions together. On the other hand, Mr. Vyas appearing for the accused has challenged the convictions in both these cases before me. 5. While challenging the convictions, Mr. Vyas has raised common grounds that will apply equally to both the cases and hence I am disposing of both revisions together. In the first place, he contended that in both these cases there was non-compliance of Rule 22 inasmuch as the quantity of the sample required to be sent to the Pubic Analyst, as per that Rule, had not been sent by the Food Inspector to the Public Analyst. He pointed out that under Rule 22, so far as the article of food, Vanaspati, was concerned, the quantity of sample required to be sent to the Public Analyst is mentioned as 500 grams, whereas in each of the two cases the Food Inspector had purchased a total quantity of 600 grams from each tin, which the divide into three parts and sent one part to the Public Analyst. In other words in each of the two cases the Food Inspector had sent only g. of Vanaspati as a sample for public analysis, which was far less than the quantity indicated by Rule 22; similarly even to the Director, the quantity of sample sent was 200 grams in each case; according to him therefore not only the Public Analysts Reports but even the certificates issued by the Director get vitiated and hence the charge of having sold adulterated Vanaspati cannot be said to have been proved and the convictions are liable to be aside. It is true that the quantity of the sample, that was sent by the Food Inspector to the Public Analyst as well as by the Court to the Director of Central Food Laboratory was 200 grams in each case. But the question whether on that account the convictions should be set aside or not would depend whether Rule 22 is mandatory or directory and if Rule 22 is regarded as directory, and not mandatory then unless prejudice is shown to have been caused to the accused on account of non-compliance the convictions need not be set aside. From that point of view, it will be pertinent to observe that Rule 22 itself suggests that the quantity mentioned against each article of food is “approximate quantity” that is required to be sent for analysis. From that point of view, it will be pertinent to observe that Rule 22 itself suggests that the quantity mentioned against each article of food is “approximate quantity” that is required to be sent for analysis. In other words, the quantity mentioned cannot be regarded as rigid or sacrosanct. The very fact that the Rule itself contemplates that the approximate quantity mentioned therein required to be sent for analysis itself suggest that the Rule cannot be regarded as a mandatory rule; and unless prejudice is shown to have been caused to the accused by reason of lesser quantity of the sample having been forwarded for public analysis, the certificated of the Director of Central Food Laboratory, Calcutta would not be vitiated. There is no material brought on record to show that either the Public Analyst or the Director was handicapped in the matter of their analysis by of only 200 grams of Vanaspati having been sent to them. The Public Analyst was in the box as the accuseds witness, but no suggestion was made to him in that behalf. It is true that the Food Inspector could have given some explanation as to why he did not send the quantity of Vanaspati as mentioned in Rule 22 of analysis, but no question seems to have been asked to him in that behalf. Perhaps he was under the impression that he was purchasing Dalda Ghee commonly known as Vanaspati and he seems to have purchased 600 grams so that he could send 200 grams for analysis (For Ghee, the quantity required to be sent for analysis is 150 grams). In any case, as I have said above, in the absence of any prejudice being shown to have been caused to the accused, I do not think that non compliance of this Rule in this respect would vitiate either the reports of the Public Analyst or the certificate of the Director of Central Food Laboratory. The contention raised by Mr. Vyas is, therefore, to be rejected. On merits, Mr. Vyas contended that the prosecution attempted to lead positive evidence through witness Shinde to show that the accused had actually mixed cotton seed oil in the Vanaspati, which he had stored for sail in his shop. But the learned Magistrate has not accepted this evidence at all. Vyas is, therefore, to be rejected. On merits, Mr. Vyas contended that the prosecution attempted to lead positive evidence through witness Shinde to show that the accused had actually mixed cotton seed oil in the Vanaspati, which he had stored for sail in his shop. But the learned Magistrate has not accepted this evidence at all. He, therefore, urged that the prosecution had failed to establish that it was the accused, who had himself indulged in adulteration by mixing other edible oils in the Vanaspati, which he had stored for sale or had actually sold to the complainant, and in view of this position, which obtains on record, he urged that the evidence, which was led by the defence to show that the accused had purchased these tins from a licensed dealer under a warranty ought to have been accepted by the learned Judge. In other words, he contended that the defence of the accused raised under section 19(2) ought to have been accepted. It is not possible to accept this submission of Mr. Vyas for the simple reason that defence witness Ramchand Lunkad, who will examined to show that the shop of M/s. Lunkad Brothers had sold Vanaspati under the bill, Exh. 37, which was produced by the witness, did not establish that the sale of the tins of Vanaspati under the bill, Exh. 37 was to the accuseds shop. The Vanaspati tins, under the relevant bill, Exh. 37, on the face of the bill, appear to have been sold to one Rathi and not to the accused. What is more, though the warranty was printed on the back side of the bill, this warranty did not bear any signature of the licensed dealer. In view of such evidence, it is difficult to say that the tins, out of which, the samples had been taken by the complainant had been purchased by the accused from in licensed dealer under a warranty. But apart from these aspects, the learned Magistrate has pointed out that in order to successfully plead the defence under section 19(2) of the Act, it was necessary for the accused to establish one more fact, viz., that the article of food while in his possession was properly stored and that he had sold it in the same state, as he had purchased it. Obviously the tins out of which the samples where taken were open tins lying in the shop of the accused and it cannot be said that the accused had sold the article of food in the same condition in which he had purchased it. In these circumstances, I am clearly of the view that the learned Magistrate was right in negativing the defence version of the accused in both the cases. Mr. Vyas, then, contended that if the reports of the Public Analyst and the certificates of the Director of Central Food Laboratory, Calcutta produced in the two cases were carefully scrutinised, it would appear clear that there was a world of difference between these sets of documents. He pointed out that according to the Public Analysts report the melting point of the sample in each case was much below the standard melting point of 31.0oC. but according to the certificated of the Director in Cri. Case No. 4876/1973 the melting point of the sample was 39.040C. i.e. was in excess of the upper limit permissible under the Rule, while in the other case same was below the standard. He pointed out that the Public Analyst has admitted that if cotton-seed oil is added to Vanaspati, the melting point is lower and if normal fat is added to Vanaspati, melting point would increase. He further urged that no attempt was made by the prosecution to get explained the discrepancy between the reports of the Public Analyst and the certificates of the Director of Central Food Laboratory. He, therefore, urged that in view of such contradictory evidence that was led by the prosecution at the trial, the accused should be given the benefit of doubt. It is not possible to accept this contention of Mr. Vyas for the reason that it was at the instance of the accused, who challenged the Public Analysts reports, from whom the Court to the Director of Central Food Laboratory, that the sample was sent by the certificate were obtained; and according to those certificates, which were thus obtained, the article of food, which was sold by the accused has been found to be adulterated-in one case it was adulterated because the melting point was far in excess of the standard melting point, while in the other case it was far less than the standard melting point as per the Rules. I have already mentioned that the Public Analyst has not indicated anywhere what method adopted by him but the certificates of the Director show that the method prescribed under the Rules was adopted for in determining the melting point of the samples. Under section 13(3) of the Act it has been clearly provided that the certificate issued by the Central Food Laboratory under sub-section (2) of the said section shall supersede the report given by the Public Analyst under sub-section (1). In other words, for the purpose of both these cases, it was the certificate received from the Director of the Central Food Laboratory, which governed the matter and the Public Analysts reports got automatically superseded. Under sub-section (3) of section 13 it has been provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory shall be final and conclusive evidence of the facts stated therein. In this view of the matter, the conviction of the accused would be perfectly justified, if the regard is had to the certificates, that were obtained from the Director of the Central Food Laboratory, Calcutta. In the result, I am clearly of the opinion that the convictions of the accused in both the cases were perfectly justified. Turning to the question of sentence, there can be no dispute, as has been pointed out by the learned Magistrate that the adulteration in the instant case would fall under section 2(i)(I) and not under section 2(i)(a). It was faintly suggested that the article sold by the accused was not of the nature, substance or quality demanded by the purchaser and was to his prejudice and in any case it was not of the nature, substance or quality, which were purported or represented to be. It is difficult to say that the accused made any representation about the quality or nature or substance of the article sold to him. The Food Inspector merely demanded from him Vanaspati and the samples from Vanaspati tins were sold by the accused to the complainant. It is true that every sample that was sent for analysis was found to be adulterated in that in one case the melting point thereof was in excess of the standard melting point and in the other case it was found to be less than the standard melting point. It is true that every sample that was sent for analysis was found to be adulterated in that in one case the melting point thereof was in excess of the standard melting point and in the other case it was found to be less than the standard melting point. In my view, the learned Magistrate was right in taking the view that the adulteration fell within section 2(i)(1) viz; that the quality or purity of the article fell below the prescribed standard. If that be the correct position, then obviously the Court has discretion after recording reasons to award sentences less than the minimum prescribed by law in accordance with the provisions of section 16(1) of the Act and in exercising that discretion the learned Magistrate has taken certain facts into account and has given reasons for awarding the sentence, which he did, and which is less than the prescribed minimum. He has pointed out that the accused is a young man of 22 years of age and that the adulteration in the case consisted of selling and storing for sale substance Vanaspati and that the adulteration was not of the serious nature, and the positive evidence led by the prosecution that he had himself indulged in adulterating the same by mixing cotton-seed oil was not acceptable. It was in view of these facts, which obtain in the case, that the learned Magistrate has imposed a sentence of fine upon the accused, I do not think that this is a case, where the discretion which has been judicially exercised by the learned Magistrate should be interfered with. Rule in revision application is, therefore, discharged in both the cases. Same appearances. 29 July, 1975. On an application being made by Mr. Vyas for the accused the matter has been kept for re-hearing before me after it was disposed of by my judgment delivered on 18th July, 1975. Mr. Vyas brought to my notice a judgment of the Supreme Court in the case of (Rajaldas G. Pamnani v. State of Maharashtra)1, A.I.R. 1975 S.C. 189 where a view has been taken that if there be infraction of Rule 22 under which a prescribed quantity is required to be supplied for analysis, the accused would be entitled to an acquittal. Vyas brought to my notice a judgment of the Supreme Court in the case of (Rajaldas G. Pamnani v. State of Maharashtra)1, A.I.R. 1975 S.C. 189 where a view has been taken that if there be infraction of Rule 22 under which a prescribed quantity is required to be supplied for analysis, the accused would be entitled to an acquittal. Relying upon this authority he sought to raise a contention before me that since in this case also there was infraction of Rule 22 the accused should be acquitted. The relevant portion of the judgment of the Supreme Court on which reliance was placed by Mr. Vyas is to be found in para 17/20 of the judgment and it runs as under : “The appellant also contended that samples were not taken in accordance with the provisions of the Act and the rules thereunder. Rule 22 states that in the case of asafoetida the approximate quantity to be supplied for analysis is 100 grams and in the case of compounded asafoetida 200 grams. The Public Analyst did not have the quantities mentioned in the Rule for analysis. The appellant rightly contends that non-compliance with the quantity to be supplied caused not only infraction of the provisions but also injustice. The quantities mentioned are required for correct Analysis. Shortage in quantity for correct analysis is not permitted by the statute”. Mr. Sawant, the learned Assistant Government Pleader, pointed out that though the contention of the appellant before the Supreme Court has been accepted, there does not appear to be any discussion in the entire judgment on the question as to whether the provisions of Rule 22 are mandatory or directory. He pointed out that this question has been gone into by us while delivering my judgment in this case on 18th July, 1975 and after considering the fact that even Rule 22 itself had indicated that the quantity of sample required to be supplied for analysis has been stated to be approximate quantity, this Court has taken the view that the rule would be directory and not mandatory, and that in the absence of any prejudice being shown to have been caused to the accused the convictions were rightly upheld. Whether there is discussion or not, the Supreme Court decision undoubtedly supports Mr. Vyass contention. Whether there is discussion or not, the Supreme Court decision undoubtedly supports Mr. Vyass contention. However, there are two hurdles in my rehearing the matter and altering my finding which I have recorded earlier as requested by Mr. Vyas. In the first place, the judgment which has been delivered by me on 18-7-1975 has already been signed by me and not only has it been signed by me but in pursuance thereof a writ of this Court has also issued. Because of these aspects it would not be possible for me to re-here the matter and alter the finding of conviction that has already been recorded by me against the accused-which has become final. In this behalf reliance was placed by Mr. Vyas upon a judgment of Division Bench of this Court in the case of (State of Bombay v. Goeffray Munners Co.)2, 53 Bom.L.R. 117 where this Court has taken the view that when an oral judgment is delivered by the High Court in its criminal appellate jurisdiction, the order made receives its finality when it is recorded and a writ in terms of the order is issued under the seal of the Court and it cannot thereafter be altered or reviewed. But a judgement or order delivered in open Court can be altered before it is recorded and before a writ under the seal of the Court is issued. The Division Bench has further gone on to observe that it would however be open to the High Court to review or alter its judgment, given in exercise of its criminal appellate jurisdiction, after it has been recorded and a writ issued in persuance thereof, where there is an error apparent on the face of the recorded and a writ issued in persuance thereof, where there is an error apparent on the face of the record or an obvious mistake about the facts which, if not corrected, would lead to miscarriage of justice. Relying upon this decision he urged that I could rehear the matter and alter a finding which I have recorded in the judgment in this case delivered on 18-7-1975. It is not possible to accept this submission of Mr. Relying upon this decision he urged that I could rehear the matter and alter a finding which I have recorded in the judgment in this case delivered on 18-7-1975. It is not possible to accept this submission of Mr. Vyas, for, the decision in Goeffray Munners Co.s case came up for consideration before another Division Bench of this Court in the case of (A.H. Satranjiwala v. The State of Maharashtra)3, 74 Bom.L.R. 742 where the position has been explained by the Division Bench thus : “Where a criminal appeal has been disposed of on merits by a Judge or a Bench of the High Court having jurisdiction to do so and there is no violation of the principles of natural justice, the judgment and order disposing of the appeal is final and is not liable to be reviewed or interfered with by the High Court under section 561-A of the Criminal Procedure Code, 1898, although the same might have been pronounced without the accused or his Advocate being present either at the hearing of the appeal or at the time of the judgment and sentence.” “Under section 561-A of the Code or otherwise, there is no inherent power in the High Court to review or reconsider a previous judgment of the High Court in a criminal matter except where the previous judgment was pronounced without jurisdiction or in violation of the principles of natural justice or, possibly, in a case where it was obtained by on abuse of the process of the Court which would really amount to its being without jurisdiction.” The same view has been reiterated by another Division Bench of the Court in the case of (Bombay Cycle Motor Agency Ltd. v. Bhagwan Prasad Ramragubir Pandey)4, 74 Bom.L.R. 742. The Division Bench has taken the view that under section 561-A of the Criminal Procedure Code, 1898, the High Court has inherent power to make an order that an appeal may be reheard in a proper case where a party who is entitled to be heard has not been heard without there being any fault on his part or on the part of his counsel. It has been further observed that party from authorities, on principle also if in a particular case the High Court finds that a judgment is obtained by abused of process or it is without jurisdiction or it is delivered without hearing the party who is entitled to be heard without the party or his counsel being at fault and therefore it is necessary in the interest of justice to set aside the judgment and order and grant rehearing afresh of the appeal, then certainly the High Court possesses such powers under section 561-A if the criminal Procedure Code. It will thus appear clear, the settled view of this Court is that inherent powers under section 561-A of the Criminal Procedure Code (equivalent to section 482 of the new Criminal Procedure Code) should be exercised for the purpose of granting a rehearing of criminal matter and altering the judgment already delivered only in three cases : (i) Where there is abuse of process the Court, (ii) where the previous judgment has been without jurisdiction, and (iii) where the previous judgment is delivered without hearing the party who is entitled to be heard without the party or his counsel being at fault. None of this exceptional cases is present in the instant case as such I am clearly of the view that once I have signed the Judgment, which was delivered by me on 18-7-1975, and once a writ of this Court was already issued, it would not be possible for me to give a rehearing of the matter that finding which has already been recorded by me against the accused. The final order passed by me on 18-7-1975 is, therefore confirmed. -----