JUDGMENT O.P. Trivedi, J.
1. This appeal has been filed by the Nagar Mahapalika Lucknow, against an order passed by the Additional Sessions Judge, Lucknow, on 17-7-1968, acquitting the respondent Dualat Ram of the charge of commission of offence punishable Under Section 7/16 of the Prevention of Pood Adulteration Act and setting aside the sentence passed against him by a Magistrate of First Class, Lucknow.
2. The facts leading to this appeal are briefly as follows : On 7-6-1965, Food Inspector S. N. Ojha had purchased sample of cow milk from the respondent. This sample was duly sealed and one of the sealed bottles was in due course, sent to Sri R. S. Srivaatava, Public Analyst for test. The said Public Analyt submitted a report dated 30-7.1965 with the finding that the sample was deficient in non-fatty solid contents by about 16%. After this report, the respondent was put up for trial before the Magistrate. He pleaded not guilty to the charge framed against him under Seotion 7/16 of the Prevention of Food Adulteration Act The learned Magistrate believed the prosecution evidence and rejecting the defence recorded a conviction Under Section 7/16 of the Prevention of Food Adulteration Act and awarded a sentence of fine of Rs. 1,000/- against the respondent, in default of payment of which he was directed to undergo simple imprisonment fox 3 months.
Daulat Ram took which was heard by Judge Lucknow, and contentions raised on Public Analyst not Under Section 8 of Adulteration Act as could not b treated the matter in appeal the Additional Sessions in the appeal one of the his behalf was that the having been appointed the Prevention of Food amended in 1961, he could not be treated as validly appointed Public Analyst and his report dated 30-7.1965, which was the basis for conviction was illegal. This argument was accepted by the Additional Sessions Judge, who relying upon a decision of this Court in Prabhu Dayal v. The State, 1968 All W E (HC) 2D7 held that Sri R. S. Srivastava, not having been appointed a Public Analyst after amendment of .the Pre-vention of food Adulteration Act (to be hereinafter referred to as the Act), was functus officio and 'his report could not be read in evidence.
It was pointed out to us in arguments by the learned Counsel for the appellant that Sri R. S. Srivastava was first appointed a Public Analyst Under Section 3 of the Act by a notification dated 27-7-1959 with effect from 3-8. 1959. To get over the difficulty which appears to have been created by the decision of a Single Judge of this Court in the case of 1968 All W R (HC) 207, a second notification appears to have been issued on 23.3-1968 superseding the earlier notification of 27.7. 1959 and by the second notification the appointment of Shri R. S. Srivastava as Public Analyst Under Section 8 of the Act, ,was Bought to be made with retrospective effect, that is, with effect, from 1-3-1965. It waa rightly submitted by the learned Counsel for the appellant that the second notification of 23-34968 was issued subsequent to the date of filing of his report by Sri R. S. Srivastava. namely, 30-7-1365. It follows, therefore, that the supersession of his appointment by the earlier notification of (27-7-1959) by the second notification of 23 3-1968 remained unaffected upto 30.7-1965. the date of his report.
The Single Judge decision of this Court in the case of 1968 All W R (HC) 207 has been overruled by a Division Bench authority of this Court in the case of Yadram v. State 1968, All WR (HO) 675 in which it was held that the amendment of Section 8 of the Act by Amending Act XLIX of 1964 did not have the effect of repeal of Section 8 of the Act as it stood before the amendment and it was further held that a Public Analyst appointed under the unamended provision of the Aot could be deemed to be a Public Analyst under the Act after its amendment in 1964. A similar question arose before us in Criminal Appeal No. 682 of 1968, which was decided on 3-2.1970 reported in A.I.R. 1971 All 53 and following the decision of this Court in 1968 All W R (HC) 675 held that a Public Analyst appointed Under Section 8 of the unamended Act could be deemed to |j be a Public Analyst under the Act after its amendment in 1934. Similar view was taken by another Bench of this Court deciding Criminal Appeal No. 662 of 1968 on 21-1-1970 (All).
3. We accordingly hold that the appoint. meat of Sri R. S. Srivastava under the first notification of 27-7.1959 was valid and effective on 3O-7-19ti5 and, therefore, he should be deemed to be a Public Analyst under the Act even after the coming into force of the Amending Act XLIX of 196i Consequently, his report of the said date was valid and could well be the foundation of a finding of guilt. As matters stand the appeal should be allowed.
4. We accordingly allow the appeal .and get aside the order of the appellate Court dated 17-7-1968 and direct that the appeal shall be heard and decided on merits, according to law.