S.S. Sandhawalia, J. - (1.) Learned counsel for the respondent-State very fairly concedes that the matter stands concluded in favour of the petitioner by the judgment of the final court in Bhim Sen Vs. State of Punjab, 1975 (II) FAC 242 and he cannot, therefore, support the conviction.
(2.) In view of the above it suffices to mention that the petitioner was convicted of an offence under section 16(1)(a)(i) of the Prevention of Food Adulteration Act and sentenced to 6 months rigorous imprisonment and a fine of Rs. 1,000.00, in default of payment of fine to undergo further rigorous imprisonment for four months by the Judicial Magistrate 1st Class, Hoshiarpur, which was upheld by the learned Sessions Judge, Hoshiarpur. The charge against the petitioner was that he had sold three bottles of Soda-water to the Food Inspector Dr. Raja Singh which on a subsequent analysis, did not come upto the standard allegedly prescribed for that by the Act vide Proviso to Para A.01.01 of the Appendix B of the Prevention of Food Adulteration Rules.
(3.) Mr. Kessar, appearing for the petitioner forcefully contends that admittedly what was purchased from the petitioner was merely soda-water and could not by any stretching of words be equated with sweetened carbonated water to which alone if at all the proviso to para A.01.01 (supra) can be attracted. There is patent merit in this contention both on principle and precedent. The Food Inspector in his evidence did not at any stage depose that what had been purchased was sweetened carbonated water and for that matter even sweetened aerated water or sweetened soda water. That being so, even on plain reading of the proviso it cannot be attracted to the case of the petitioner. Apart from the above, their Lordships of the Supreme Court in Bhim Sens case (supra) observed as follows:- "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 may not contained 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 Sec. 342 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 appellant contained only 0.38 per cent sucrose, or for the matter of that no sucrose at all".;