S.D.BAJAJ,J - (1.) IN Criminal Misc. No. 5718-M of 1987 and Criminal Misc. No. 7426-M of 1987 both, a much too simple point of law is involved for determination. The sample of carbonated water obtained by the Government Food Inspector from the accused petitioner was on analysis allegedly found : (i) deficient in prescribed sucrose content of 5 per cent, and also (ii) contained sachharin which was not indicated on the label appended to the carbonated water battles in terms of the rules Govt. Food Inspector launched the prosecution vide complaint Annexure PI and the learned trial court initiated proceedings against the accused petitioner or its basis. In both the petitions it has been asserted that 5 per cent sucrose content is prescribed for sweetened carbonated water and not ordinary carbonated water and that sachharin having not been added to the carbonated water for sweetening it, its detection in carbonated water sample obtained from the accused petitioner is of little consequence. Since the contents of complaint annexure P1 do not disclose the commission of a criminal offence by the accused petitioners, the complaint merits quashing.
(2.) I have heard Shri H.S. Sawhney, Advocate, for the petitioners, Shri H.S. Brar, Advocate, with H.P. Singh. Advocate, for the respondent Union Territory, Chandigarh, and have carefully gone through the material on record. Seized of the same problem in Bhim Sen v. State of Punjab, 1975 Prevention of Food Adulteration Cases 242 their lordships of the Supreme Court observed, "It is apparent from the record of the case that the conviction of the appellant suffers from a serious infirmity and it is impossible to sustain it. It is indeed surprising how the attention of the Chief Judicial Magistrate or the Additional Sessions Judge or the High Court was not drawn to this patent infirmity which stares in the face. The charge against the appellant was that on 11th July, 1968 he sold to the Food Inspector 1800 militants of "aerated water" which was found on analysis to have sucrose content of 0.38 per cent as against the prescribed standard of 5 per cent and thereby committed an offence punishable under section 7 read with section 6 of the Act. The basis of the charge was that the sucrose content of "aerated water" sold by the appellant should have been at least 5 percent whereas in fact it was very much less, namely, 0.38 per cent according to the report of the Public Analyst and nil according to the report of the Director, Central Food Laboratory. But, if we look at item A.01.01 in Appendix B of the Prevention of Food Adulteration Rules, 1955 It is clear that this postulate on which the charge is based, namely, that sucrose content of aerated water" should necessarily be less than 5 per cent is incorrect. This item lays down the standard of quality of carbonated water which is the same as "aerated water" and it says that carbonated water may contain any of the ingredients there enumerated, singly or in combination and one of those ingredients is sugar. It is, therefore, obvious that aerated water may contain sugar or may not contain sugar and if it does not contain sugar, it would not in any way detract from the standard of quality prescribed for aerated water" in this item. It is only the proviso to this item which requires that the sucrose content shall not be less than 5 percent, but that is in case of "sweetened carbonated water." If what is sold is "sweetened aerated water", then it must contain sucrose of not less than 5 per cent or else it would not be in conformity with the standard of quality prescribed for this item and would have to be regard as adulterated. But, this requirement of sucrose content being not less than 5 per cent does not apply where what is sold is not sweetened "aerated water" but merely "aerated water" which may or not contain sugar. Here in the present case the charge against the appellant was not that he, sold sweetened aerated water" nor was any evidence led on behalf of the prosecution to show that what was sold by the appellant was sweetened aerated water. The charge against the appellant mentioned only "aerated water" and nothing more and that was also the evidence on behalf of the prosecution. Even in the examination of the appellant under section 42 of the Code of Criminal Procedure it was not suggested to him that he sold "sweetened aerated water. The case which he was called upon to meet was only in regard to sale of "aerated water". It was, therefore, entirely immaterial that the sample of aerated water sold by the appellant contained only 0.38 per cent sucrose, or for the matter of that, no sucrose at all. The so called deficiency in sucrose content did not involve any violation of the standard of quality prescribed for aerated water in Item A.01.01 and the sample of aerated water" sold by the appellant could not be condemned as adulterated. The Chief Judicial Magistrate, the Additional Sessions Judge and the High Court were, therefore, clearly in error in convicting the appellant of the offence under section 7 read with section 16 of the Act Since the sample collected from the accused petitioner was of 'carbonated water' contradistinguished from sweetened carbonated water adverted to in the proviso below rule A.O1.O1 of the Prevention of Food Adulteration Rules, 1955 sucrose content therein was not required to be 5 per cent as prescribed in the proviso.
(3.) FURTHERMORE , saccharin not exceeding 100 p.m. could legitimately be mixed and could, therefore, be found in carbonated water aforesaid. The relevant rule A.O1.O1 of the Rules ibid reads :- "A. 01.01. Carbonated water means potable water impregnated with carbon dioxide under pressure and may contain any of the following, singly or in combination. Sugar, liquid glucose dextrose monohydrate, invert sugar, fructose, honey, saccharin not exceeding 100 ppm. fruits and vegetables, extractives and permitted flavouring colouring matter, preservatives, emulsifying and stabilizing agents, citric acid, fumeric acid and sorbitol, tartaric acid, phosphoric acid, lactic acid, ascorbic acid, maleic acid, edible gums, such as guar, karaya, arabic, carabean furcellaran tragacanth gum, ghatti, edible gelatin, albumin, licoric and its, derivatives, salts of sodium, calcium and magnesium, vitamins, caffeine, not exceeding 200 parts per million, and quinine salts not exceeding 100 parts per million (expressed as quinine sulphate); Provided that in the case of sweetened carbonated water other than tonic water in the dry gingerale the percentage of total sugarsexpressed as sucrose shall not be less than five." The saccharin content mentioned in its report is 92.8 ppm and 84.8 ppm. respectively which is obviously less than 100 ppm aforesaid and therefore in no way objectionable. The same could not be made the basis for the prosecution of the accused-petitioners.;