IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision No.1118 of 2000 Date of decision: May 20, 2010 Dilawar Khan .. Petitioner Vs. State of Haryana .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. R.S. Sihota, Sr. Advocate with Mr. B.R. Rana, Advocate for the petitioner. Mr. Rajiv Malhotra, Addl. A.G. Haryana for the respondent. A.N. Jindal, J Carbonated water mixed with sucrose and saccharine higher than the prescribed quantity was recovered from the accused-petitioner (herein referred as 'the petitioner'), as such, he was prosecuted for the offence under Section 7 read with Section 16(1) (a) (i) of the Prevention of Food Adulteration Act, 1954 (herein referred as 'the Act') and was convicted by both the courts below while upholding the sentence of six months and to pay fine of Rs.1000/- imposed upon him, which has been assailed by way of revision. In nutshell, the allegations are that on 7.6.1992, at about 2.00 p.m. R.C. Arora, Government Food Inspector along with Dr. Anita Bansal, Medical Officer, Government Hospital, Ballabgarh inspected the premises of the petitioner at Sector 6, Ballabgarh and found him in possession of 49 bottles each having 200 mls of sweetened carbonated water (orange) without any label declaration for public sale, out of which Government Food Inspector purchased 9 bottles, made them homogenous while putting in a jug and thereafter, contents were divided into three equal parts and bottled in three dry clean and empty bottles. The bottles were stoppered tightly and sealed on the neck with the seal of the Medical Officer. The ends of the paper seals were pasted with the gum. Paper slip bearing code number and signature of the Local Health Authority, Ballabgarh was pasted on each bottle from the top to bottom. Each bottle was secured by means of Criminal Revision No.1118 of 2000 -2- *** strong twine and sealed with the seal of Medical Officer and Food Inspector at the spot. Thumb impressions of the petitioner were obtained in such a manner that both paper slips and wrapper on each sealed bottle carried a part of his thumb impression. On analysis, the public analyst in his report Ex.PE observed as under :- 1. Physical appearance : Orange coloured liquid in a glass bottle. 2. Total reducing sugar : 2.5% as sucrose. 3. B.V.O. And Lead : Absent 4. Saccharine : Present (300 PPM) 5. Dulcin and Cyclamates : Absent 6. Citric Acid : Present 7. Test for colour : Permitted SSY and Tartrazine coaltar dye detected. The Public Analyst opined that the sample did not confirm to the prescribed standards as sucrose was found 2.5% and saccharine 300 PPM against the minimum and maximum prescribed standard of 5.0% and 100 PPM respectively. The addition of saccharine is without any label declaration which is contravention of rule 42 (zzz) (i) of the Prevention of Food Adulteration Rules 1955 (herein referred as “1955 Rules”). The complaint was filed. In pre-charge evidence, the prosecution examined Ramesh Chand Arora (PW1). After framing the charge against the accused R.C. Arora was called for cross examination. The prosecution also examined Dr. Anita Bansal (PW2) and Dr. V.A. Mehendiratta (PW3). When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. He further explained that the Food Inspector did not take the samples in accordance with the procedure and the sample was not sent in the original form. Each bottle had the label regarding the use of saccharine. The sample was not sent in the bottles. The complainant witnesses are interested. However, no evidence was led in defence. Criminal Revision No.1118 of 2000 -3- *** Trial ended in conviction. His appeal also failed. Arguments heard. Record perused. The main stake of the argument advanced by the learned counsel for the petitioner is that since the sample was not injurious to health, as such, higher quantity of of sucrose and less quantity of saccharine does not in any way effect the validity of the sample and do not make it as injurious to health. To the contrary, learned State counsel has supported the judgment. Argument lacks merit. The offence punishable under Section 16 (1) (a) (i) and (ii) are complete even if the sample is adulterated or it is found in contravention of the Act or any Rule made thereunder. The relevant portion of Section 16 of the Act reads as under :- “16. Penalties - (1) Subject to the provisions of Sub- section (1A), if any person - (a) Whether by himself or by any other person on his behalf, imports into India or manufactures for sales or stores, sells or distributes any article of food - (i) which is adulterated within the meaning of sub- section (m) of clause (ia) of Section 2 or misbranded within the meaning of clause (ix) of that section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority; (ii) other than an article of food referred to in sub- clause (i), in contravention of any of the provisions of this Act or of any rule made thereunder; The Section 16 (1) (a) (i) finds a reference to the adulteration as defined in sub- clause (m) of clause (ia) of Section 2 of the Act. The said Section 2 (ia) (m) reads as under :- Criminal Revision No.1118 of 2000 -4- *** “(m) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health: Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause. On bare reading of the section it transpires that the offence under the Act is complete, if : (i) the quality or purity of the article falls below the prescribed standards; or (ii) its constituents so required are present in the quantities not within the prescribed limits of variability, but the same do not render it injurious to health. Thus, in the present case, both sucrose and saccharine having not been found as per the prescribed standard for the same, therefore, certainly the accused could be said to have committed the offence. Moreover, the complainant has stated that the accused do not declare the extent of saccharine as added by the accused which is also in violation of Rule 42 (zzz) (i) of the Act as it was prevalent before the amendment which took place on 29.11.1997. Having perused the Rule as was applicable at the time of taking the sample, the label so produced by the accused Ex.D1 does not conform to the requirement of Rule 42 (zzz) (i) of the Rules. Bare perusal of the Rule transpires that though the sample contains sucrose, but the label does not disclose if the some artificial sweetener like sucrose was also added. The label does not indicate if sample could be used by the children or the pregnant woman. In order to escape the punishment, learned counsel has cited the judgment delivered in case Parmod Kumar vs. State of Haryana, 1993 (1) Prevention of Food Adulteration Cases, 132, wherein it was observed that when the carbonated water found in possession of the accused-petitioner contained saccharine Criminal Revision No.1118 of 2000 -5- *** 300 PPM which was added to sweeten the same. There is nothing to show that presence of 300 PPM saccharine was injurious to health. Thus, the carbonated water found in possession of the petitioner cannot be held to be of sub-standard quality. With due reverence to these observations, it may be observed that the learned counsel did not bring to the notice of the court about the standards prescribed for carbonated water and as such, the court treated the carbonated water equal to potable water impregnated with carbon dioxide under pressure. As such, the said judgment is not applicable to the facts of the present case. No other point has been raised. Having gone through the impugned judgment, it is observed that there are concurrent findings of fact returned by both the courts below that the accused had committed violation of rules as provided under the Act punishable under Section 7 read with Section 16 (1) (a) (i) of the Act. No such irregularity much less illegality or perversity has been found in the impugned judgment warranting interference by this Court. Resultantly, finding no merit in the petition, the same is dismissed. May 20, 2010 (A.N. Jindal) deepak Judge