Madan Mohan Punchhi, J. - (1.) TILAK Raj, a shopkeeper of Ferozepore Cantt., has challenged his conviction under Section 16(1)(a) of the Prevention of Food Adulteration Act read, with Section 7, thereof and sentence of one year's rigorous imprisonment and a fine of Rs. 3,000 in default further rigorous imprisonment for nine months.
(2.) THE case of the prosecution is simple and straight. It became all the more so by the stand taken by the Petitioner. On 26th of June, 1974, the Petitioner was found to be in possession of two crates (48 bottles), containing a substance which was orange in colour and stated to be sweetened carbonated water. Out of these Dr. S.K. Gupta (P.W. 1), the Food Inspector, purchased 9 bottles, took samples therefrom and sent the same to the Public Analyst. On analysis, the Public Analyst found that the orange coloured sweetened carbonated water sent to him contained no sugar at all, whereas it should have contained a minimum of five per cent. On that premises, the Petitioner was complained against, tried, convicted and sentenced by the trial Court. The order was maintained in appeal before the Sessions Court. This is how the matter has come up to this Court in revision. The principal contention of the learned Counsel for the Petitioner is that the substance recovered from the Petitioner though described as orange coloured, sweetened and carbonated water yet it cannot be said to have been adulterated in view of the definition given in Rule 5 of the Prevention of Food Adulteration Rules read with item A. 01.01 of Appendix B of the Rules. In order to appreciate the contention, it would be useful to incorporate here the definitions of carbonated water and sweetened carbonated water which would come into play to arrive at a proper decision: A.01.01. -Carbonated water means potable water impregnated with carbon dioxide under pressure and may contain any of the following singly or in combinations: Sugar, liquid glucose, dextrose, monohydrate, invert sugar, fructose, honey, saccharin not exceeding 100 p.p.m. fruits and vegetables extractives and permitted flavouring colouring matter, preservatives, emulsifying and stabilizing agents, citric acids, tartaric acid, phosphoric acid, lactic acid, ascorbic acid, malic acid, edible gums referred to in the Indian Pharmacopeia, edible gelatin, calcium, licorice and its derivatives, salts of sodium, calcium and magnesium, vitamins, caffeine not exceeding 200 pars per million, and quinine salts not exceeding 100 parts per million (expressed as quinine sulphate): Provided that in the case of sweetened carbonated waters other than tonic water and dry gingerale the percentage of sucrose shall not be less than five.
(3.) ELABORATING the contention, it was pointed out that carbonated water would only mean potable water impregnated with carbon dioxide. In order to become sweetened carbonated water, it has to contain (carbonated water may or may not) a sweetening agent of any of the kinds mentioned in the above -quoted items namely sugar, liquid glucose, dextrose, monohydrate, invert sugar, fructose , honey, saccharin not exceeding 100 p.p.m. fruit and vegetable extractives. The other items mentioned therein are flavouring, colouring or preserving agents. The sweetening agents are only these and sugar is just one of them. It was pointed out that it was saccharin at the level of 100 parts per million which was present in the sample, but its percentage was not disclosed in the analysis. On the other hand, analytically it was disclosed that sugar was absent and its absence per se was taken to make it fall of the minimum of 5 per cent prescribed. On that analysis, the learned Counsel for the Petitioner contends that the Public Analyst has nowhere stated that the saccharin of the permissive kind was below the minimum percentage as prescribed in the item. Absence of sugar per se from the sample was no crime as the Petitioner could have chosen any of the sweetening agents above -referred to.;