E.K. Moidu, J.
1. This appeal by the Food Inspector of the Kottayam Municipality is against the acquittal of respondents 1 and 2, who were alleged to have committed an offence Under Section 7(i) read with S. 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (Central Act 37 of 1954).
2. P.W. 3, the then Food Inspector of the Municipality, visited the Boda fountain conducted in the name and style of 'Jacobs Aerated Waters, Kottayam,' of which the 1st respondent was the manager and the 2nd respondent the owner, at about 10 A. M. on 27-3-69, when he made a demand to purchase 9 bottles of 'Orange Blood,' which was kept for sale. The 1st respondent, therefore, sold 9 bottles of the 'orange blood' for Rs. 2.25 under Ext. PI voucher. Ext. P2 notice had been issued to the respondents at the spot alleging that he had to send the sample to have the same analysed by the Public Analyst. Thereafter, P.W. 3 poured out the contents of the 9 bottles into an aluminium vessel, which was supplied to him by P.W. is, who was an employee of the concern. After mixing the contents in the aluminium vessel, they were separately poured into 3 bottles and they were closed, locked and sealed. One of suoh bottles was given to the 1st respondent, one was sent to the court and the third was sent to the Public Analyst. M. O. 1 is the sample bottle sent to the court. P.W. 3 then prepared Ext. P3 mahazar and Ext. P5 memorandum at the spot. Ext. P4 is the label affixed on each of the sample bottles 'of 'orange blood.' Ext. P4 label is read as follows:
Contains: permitted flavour, colour preservatives, saccharine B. P., and sugar. Refilling and setting by others in this bottle will be prosecuted.
The Public Analyst in his report, Ext. P6, declared the results of the analysis as follows: Total solids. : 3.9 per cent.Total sugars. : 3.6 per Gent.Artificial sweetner : 384.0 parts per(Saccharine) million,Carbondioxide : Present.Permitted coal-tar dyes:- Sunset 'yellow and : Present'carmioisine. J
He wag of the opinion that the said sampl6 did not conform to the standards prescribed for carbonated water under the Prevention of Food Adulteration Rules, 1955 and was therefore adulterated. On completion of the investigation, P.W. 1, who was the successor in office of P.W. 3, laid the charge against the respondents 1 and 2 on 25-10.69.
3. The respondents 1 and 2 denied the charge and stated that they are not guilty of any offence.
4. The District Magistrate (Judicial), Kottayam on an analysis of the evidence and other circumstances in the case held that the beverages sample contained 3 times in excess of the permitted quantity of saccharine, that the Food Inspector was not justified in describing 'orange blood' as aerated water, that the mixing of the sample in an aluminium vessel the neatness of which was disputed gave room for some legitimate complaint for the accused, that the direction in Rule 22A that contents of one or more similar sealed containers having identical labels to constitute the quantity of a food sample was not corn plied with, that the laboratory records failed to establish full details, bo much so there had been irregularity in the conduct of the analysis and that there was serious doubt whether the respondents committed any offence, with the result the lower court found the respondents 1 and 2 not guilty of any offence. Accordingly, the acquittal was entered.
5. The main argument of the learned Counsel of the appellant was that the sample described as 'orange blood' sold to P.W. 3 was an article of food and at an article of food the vendor must establish the quality of the article as not to fall below the prescribed standard or its constituents are present in quantities, which are not in excess of the prescribed limits of variability. On bahalf of the respondents 1 and U, it is contended that P.W. 3. Food Inspector, made a demand for aerated water, that the lat respondent supplied the aerated water and, therefore, it is not open to the prosecution now to argue that what was supplied on demand was not aerated water but it was something else. According to the prosecution, what is supplied by the 1st respondent and analysed by the public Analyst was carbonated water. There is much difference in connotation of the expressions, carbonated water and aerated water The expression of aerated water in Appendix B of the Act hail been substituted with carbonated water, Vide : Health Ministry's Notification No. P. 14-6/65 P H (L & E) dated 23-12-65 which came into force with effect from 31-12.65. 8o, on the date of the 'alleged incident, the Bale of aerated water as Such was not an offence.
The question was then whether P.W. 3 made a demand for aerated water cr carbonated water, It was very clear from the proceedings that P.W. 3 made a demand for aerated water. In Exts. P5 as well as in P6, the article was described as 'orange blood' (aerated water). The accused 1 and 2 were questioned in the lower court Under Section 342, Cr.PC These questions, especially question Nos. 8 to 12 indicated that P.W. 3 demanded for aerated water. Question No. 11 reads: 'The Pood Inspector demanded from you for aerated waters and that the orange blood labelled on the bottle was only a trade name. What have you got to say?' This vim an indication that P.W. 3 made a demand for aerated waters The charge laid against the respondents 1 and 2 had also indicated that the offence was for the pale of aerated water. But, during the trial, P.W. 3 stated that he demanded for carbonated water. That evidence of P.W. 3 was against his own description of the article which he purchased as well as the records maintained in the case. Even the lower court went under the impression that P.W. 3 trade a demand for aerated water and that the 1st respondent supplied aerated water to him. If it was then the case of the prosecution that a demand was made for aerated water, it can be stated that the respondents could not be held liable for an offence for the Bale of aerated water.
6. The definition of aerated water as it appeared prior to 31-12-65 may be seen as defined in Appendix B of the Act.
A. 01.01, Aerated water, other than so3a water, means potable water sweetened with sugar impregnated with carbon dioxide or oxygen or with both, under pressure, with on without admixture of salts of sodium, magnesium or calcium, singly or in combination, with or without Citric Acid and/or phosphoric acid and of the permitted flavouring and colouring substances and permitted preservatives, if any, and shall not contain tartaric acid or other mineral acid or any lead or other poisonous metal, or any other added substance.
But, after 31-12.65, the Appendix B is substituted with the following description in the place of aerated water. The present description reads:
A. 01.01. Carbonated water means potable water impregnated with carbondioxide 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 matter, preservatives, emulsifying and stabilising agents, citric acid, tartaric acid, phosphoric acid, lactic acid, ascorbic acid, malic acid, edible gums referred to in the Indian Pharmacopoeia, 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 waters other than tonic water and dry gingerale the percentage of sucrose shall not be lass than five.
7. It is evident that the sale of aerated water with the admixture of saccharin would not be an offence. It was not an offence even under the definition of the aerated water in the old Act. In this regard, I may point out a decision in Badshahmal v. State of Uttar Pradesh A.I.R. 18G5 All 486. That was a case, where saccharin was Used in aerated water. The aerated water as defined in the old Act prohibited any addition of tartaric acid or other mineral acid or any lead or other poisonous metal, or any other added substance. Bui, Rule 44 as it was then in existence read that, 'no person shall either by himself or by any servant or agent sell, (g) any article of food which contains any artificial sweetener except saccharin, or in the preparation of which any such artificial sweetener has been used'. Here the U3e of saccharin in aerated water was permitted. Admittedly, aerated water is also an article of food. But the Allahabad High Court held that in view of Rule 44 (g) quoted above, the addition of saccharin to aerated water was not an offence as the provision of Rule 44 (g) had to be read in harmony with the provision of Appendix B of the old Act. The opinion of the Allahabad High Court is expressed in the following wards :
We are thus faced with the situation that H. 44 (g) permits the use of saccharin in aerated water whereas Para. A. 01.O1 of Appendix B of Rules, while defining the standard of purity of aerated water seems to prohibit the use of saccharin. The object of Para. A.Ol.Ol is to define the standards of purity of aerated water. It does not specifically deal with the question of prohibition of sales of articles of food. That ia dealt with by Rule 44. An article of food, which does not coma up to the standard prescribed by Para. A. 01.01., would by virtue of Rule 5, be said to be below the Standard .prescribed, but in so far as the deviation from the prescribed standard is permitted by Rule 44 the deviation will, in my opinion, be not penal.
8. But, the Kerala High Court did not appear to have noticed the provision of E. 44 (g) when it decided a case reported in food Inspector, Calicut Corporation v. Narayanan, 1064 Ker L T 1032. The view of this Court that Rule A. 01.01 permitted the use of only sugar as a sweetening agent and expressly prohibited the addition of any sub. stance other than those mentioned in the rule was not correct as it was not considered in consonance with the Rule 44 (g) which was not evidently brought to the notice of the learned Judge. So, the Kerala decision could not have been followed to hold a person liable for an offence is saccharin was found used in aerated water then. However, the decision is no larger in force as the aerated water itself had been removed out of Appendix B of the Act. Anyway, it had been held by the Allahabad High Court that the use of saccharin in aerated water as a sweetener was not an offence. A am in respectful agreement with that view.
9. Having found that the admixture of saccharin in the aerated water was not an offence and it is no longer an offence under the provisions of Appendix B read with the other provisions of the Act, it cannot be maintained that the respondents 1 and 2 would be held liable for sale of the aerated waters to P.W. 3. The contention of the learned Counsel of the appellant that the respondents could be held liable for the sale of ''orange blood' as an article of food cannot be accepted as ultimately the Food Inspector was to analyse the stuff either as aerated water :or carbonated water. When there is specific provision to bring a particular food within the provisions of the Act, the Court would not be justified in holding the accused liable to an offence on the sole ground that 'oragne blood' is an article of food. The 'orange blood' in the particular case is labelled with a specific label deacribing the ingredients contained in it. One of the ingredients is saccharin. Though the limit of the ingredient of saccharin allowed under law is 100 ppm. on the basis of the Appendix B, A. 01.01, it wa9 :found exceeded in the instant case. It would have been an offence if the prosecution case was that they demanded and purchased carbonated water. But, the article of food, demanded by the appellant being aerated water, for which there was no prescribed limit for the inclusion of saccharin under the old Act, it could not be said that the respondents 1 and 2 had committed any offence. The contention of the learned Counsel of the appellant cannot, therefore, be accepted. There were other contentions raised by the learned Counsel of the respondents, but I do not think that they require any consideration in this appeal as the appellant has failed to make out an offence against the respondents 1 and 2. I find the respondents not guilty of any offence,
10. In the result, the appeal is dismissed devoid of any merit.