BHIM SEN Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This appeal lies in a very narrow compass and a brief narration of a few relevant facts would be sufficient to appreciate the point which arises for consideration in the appeal.

(2.) 'The appellant is the owner of a restaurant called Kailash Restaurant where he manufactures aerated water sold under the name of Fresh Cola. On 11th July, 1968, the Food Inspector visited the restaurant of the appellant and took a sample containing 1800 Millilitres of aerated water for analysis on payment of a sum of Rs. 2.50 after giving requisite notice to the appellant. This sample of aerated water was divided into three equal parts and each part was bottled in a dry cleaned bottle and out-of the three sample bottles so prepared, one was handed over to the appellant the other was retained by the Food Inspector and the third was sent to the Public Analyst, Chandigarh. The report of the analysis by the Public Analyst showed that sucrose content in the sample of aerated water sent to him was 0.38 per cent, whereas according to him the sucrose content should have been not less than 5 per cent. The sample of aerated water was thus, in his opinion, adulterated and, in view of this report a criminal case was filed against the appellant for an offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954 for selling adulterated aerated water.

(3.) During the course of the trial before the Chief Judicial Magistrate the appellant made an application for sending the sample of aerated water which was lying with him to the Director, Central Food Laboratory for a certificate and the Chief Judicial Magistrate accordingly dispatched that sample of aerated water to the Director, Central Food Laboratory as required by Sec. 13, sub-s- (2) of the Act. The Director of the Central Food Laboratory analysed the sample of aerated water sent to him and submitted a certificate stating that the sucrose content was absent and there was non-permitted Coal Tar dye in the sample. The Chief Judicial Magistrate obviously did not take into account the fact that the certificate of the Director, Central Food Laboratory showed the presence of non-permitted Coal Tar dye in the sample since that did not form the subject-matter of the charge against the appellant, but taking the view that under Item A-01-01 in Appendix B of the Prevention of Food Adulteration Rules, 1955 the sucrose content should not be less than 5 per cent, the Chief Judicial Magistrate held that the sample of aerated water sold by the appellant to the Food Inspector was adulterated since the sucrose content in it was negative and he accordingly convicted the appellant and sentenced him to suffer rigorous imprisonment for one year and to pay a fine of Rs.2,000/- or in default to suffer rigorous imprisonment for a further period of four months.