JUDGMENT R.B. Lai, J. 1. This appeal by special leave is directed against the order and judgment of acquittal dated 12-5-1977 passed by Sri K.P. Mathur, Special Judicial Magistrate, Allahabad. 2. Food Inspector, Sri K.N. Misra (WP 1) found Garib Das accused, respondent No. 1, selling milk near Kolhan Tola Allahabad on 3-10-1974 at about 11.45 A.M. The Food Inspector disclosed his identity to respondent No. 1 and expressed his desire to purchase a sample of milk for analysis. He purchased 660 ml milk for Rs 1.50 p. and put it in three phials in equal quantity and added eighteen drops of formaline to each phial. The phials were duly labelled, sealed and a sample phial along with notice was handed over to respondent No. 1. Other formalities with regard to the taking of the sample were also observed. Zulfikar Havaldar and Lallan Chauhan were present at the time of the taking of the sample. In the records the Food Inspector mentioned the quantity taken as 600 ml. instead of 660 ml. A sample phial was sent to the Public Analyst, Lucknow for analysis and report and (the Public Analyst submitted report dated 31-10-1974 that the sample contained 4.5 per cent fat and 5.9 per cent non-fatty solids. The sample was deficient both on fat and non-fatty solids contents according to the standard for buffalo milk. Thereafter the Nagar Swasthya Adhikari filed complaint against respondent No. 1 saying that he was liable for punishment under section 7/16 of the Prevention of Food Adulteration Act (briefly the Act) for selling adulterated milk. The defence of Garib Das accused was that he was not selling milk and he was not given any notice, price of milk or a sample phial. He did not adduce any evidence in defence. 3. The prosecution examined two witnesses namely the Food Inspector K.N. Misra (PW 1) and Food Clerk S.N. Srivastava (PW 2), to prove its case. 4. It appears that during the course of arguments inter alia it was argued before the learned Magistrate thai there was no compliance with the provisions of rule 22 of the rules framed under the Act, inasmuch as the quantity sent to the Public Analyst for analysis was short by 20 ml. 220 ml. milk should have been sent to the Public Analyst for analysis, but only 200 ml. milk was sent. 220 ml. milk should have been sent to the Public Analyst for analysis, but only 200 ml. milk was sent. The learned Magistrate accepted this contention and held that in view of the non-compliance with the mandatory provisions of rule 22, the accused could not be convicted. He, therefore, acquitted the accused. The Nagar Swasthya Adhikari did not feel satisfied and filed this appeal with special leave. 5. Garib Das respondent was served personally, but he did not care to engage a counsel. Today, neither the respondent no. 1 nor any one has appeared on his behalf to contest this appeal. I have heard the learned counsel for the appellant. 6. Though the learned Magistrate has not mentioned any authority in support of his order of acquittal it; appears that he had placed reliance on the Supreme Court decision in Rajal Das G. Pamanali v State of Maharashtra, AIR 1975 SC 189 , where it was held that the provisions of rule 22 were mandatory and their non-compliance vitiated the trial. This decision was overruled by the Supreme Court by its decision in State of Kerala v. Alassery Mohammad, AIR 1978 SC 933 . Their lordships observed that rule 22 was directory. It is for the Public Analyst to say whether the quantity of sample sent to him is sufficient for analysis or not. If the quantity sent to the Public Analyst even though it is less than that prescribed!, is sufficient and enables the Public Analyst to make a correct analysis, them merely because the quantity sent was not in strict compliance with the rule,, will not result in the nullification of the report and obliterate its evidentiary value in view of this later decision of the Supreme Court, the order of acquittal based on the ground that rule 22 was mandatory, cannot be upheld ihd deserves to be set aside. In Ram Das v. Soda Nand, AIR 1980 SC 126 , their lordships observed:- "Therefore, in an appeal against acquittal, the exercise of discretion by the Supreme Court not to interfere with the High Court's order of acquittal on the ground that the law as it then stood was correct, would not arise, more so, when it was a case of economic offender." In this view of the Supreme Court, the order of acquittal cannot be allowed to stand on the ground that on the date when the Magistrate passed the order of acquittal, the law as laid down by the Supreme Court, was different. The order of acqulital deserves to be set aside. Now, the question for consideration is whether I should proceed to dispose of the case on merits, or send back the case to the lower court for a fresh decision according to law. The plea of Garib Das accused respondent was that he was not selling milk and sample was not taken from him. This was a plea of fact on which the learned Magistrate did not record any finding one way or the other. On a perusal of the evidence recorded by the lower court I find that in this case compliance with the provisions of clause (j) of rule 9 of the rules framed under the Act, as it stood, in 1974 was not made. A Division Bench of this Court has no doubt held that the provisions of rule 9 (j) are merely directory (vide the opinion of the Division Bench In Sumar Chand v. State, Criminal Revision No. 1050 of 1977, decided on 24-1-1980 by Hon'ble Bakshi, J.) but it has also held that it is to be considered whether the non-compliance with this provision has caused prejudice to the accused. It appears that the learned counsel for the defence had concentrated on Rajal Das's case on account of the obvious shortage in the quantity of milk which was sent to the Public Analyst and he did not pay any attention to the question of prejudice on account of the non-compliance of rule 9 (j). It appears desirable that the accused should get an opportunity to bring material, if any, on this aspect of the case as well, on the record. It appears desirable that the accused should get an opportunity to bring material, if any, on this aspect of the case as well, on the record. For these reasons I am inclined to take the view that the case should not be decided by this court on merits and it should be sent back to the lower court for a fresh trial. 7. In the result, the appeal succeeds and is allowed. The order of acquittal dated 12-5-1977 is set aside and the case is remanded to the lower court for a fresh trial according to law. This time the case will be disposed of by some competent Magistrate otter than Sri K.P. Mathur. Both the parties shall be allowed an opportunity to lead evidence in the case. Appeal allowed.