P. Govinda Menon, J.
1. This appeal is filed by the Food Inspector of the Calicut Corporation against the two respondents who had been prosecuted for exposing for sale misbranded adulterated aerated water punishable under Section 16(1)(a) of the Prevention of Food Adulteration Act. Pw 1 one of Food Inspectors attached to the Calicut Corporation, has deposed that on 19-10-62 he visited Ravi Soda Factory owned by the second accused and found the first accused exposing for sale 24 bottles of orange crush among other things. He purchased 8 bottles and paid its price under a cash bill Ex. P1. The articles were duly sampled and sent to the Public Analyst. Ex, P3 is the certificate which shows that the sample contained artificial sweetener, saccharine, in partial replacement of sugars and he expressed his opinion that it was adulteration.
2. When questioned the first accused stated that the soda factory is run by himself and that the second accused had nothing to do with the business. He contended that the orange crush contained 25 per cent of orange juice. The second accused stated that he had sold away the factory to the first accused, but he has admitted that it was only in March 1963, a few months after the samples were sold that he had transferred the shop to the first accused. Learned District Magistrate found the accused not guilty and acquitted them.
3. In Appendix B, Rule (A. 01,012) defines the quality and the standard prescribed for aerated water. It says aerated water, other than soda water, means potable water sweetened with sugar impregnated with carbon dioxide or oxygen or with both, under pressure, with or without admixture of salt of sodium, magnesium or calcium, singly or in combination with or without citric acid and of the permitted flavouring and odouring substance, if any and shall not contain tartaric acid or other mineral acid or any lead or other poisonous metal, or 'any other added substance' (underlining (here in single quotation marks-Ed.) is mine).
So if the quality of the aerated water is below the prescribed standard it would be deemed to have been adulterated. The rule permits the use of only sugar as a sweetening agent and expressly prohibits the addition of any substance other than those mentioned in the rule. The report of the Public Analyst shows that sacchrine had been added and therefore the aerated water in this case does not conform to the standard prescribed. Learned Counsel for the respondents referred me to R. 47 which says that sacchrine may be added to any food if the container of such food is labelled with an adhesive declaratory label with the words, 'This....(name of food) contains an admixture of sacchrine.' This is only a general provision but when there is a specific provision prohibiting the admixture of sacchrine in aerated water and when sugar alone can he used and when the standard and duality have been prescribed it must conform to that standard and if it does not the article would be deemed to be adulterated.
4. Again there is an infringement of R. 40 (2) of the Prevention of Food Adulteration Rules. Rule 140 (2) is in the following terms:
(2) Any fruit syrup which does not contain at least (twenty-five per centum) of fruit juice toy weight in its composition shall not be described as a fruit syrup juice, squash or cordial or crush and shall be described as a synthetic syrup. Every synthetic syrup shall be clearly and conspicuously marked on the label as a 'synthetic' product, and no container containing such product shall have a label, whether attached thereto or printed on the wrapper of such container, or otherwise which may lead the consumer into believing that it is a fruit product. Neither the word 'Fruit' shall be used in describing such a product nor shall it be sold under the cover of a label which carries picture of any fruit.
5. Here the accused has affixed a label displaying the picture of a cut half of an orange with a glass of juice. Rule 40 (2) prohibits the use of any label which may lead the consumer into believing- that it is a fruit product. Learned Magistrate has stated that the Public Analyst's report does not show that the sample does not contain any fruit juice and therefore it cannot be stated that the aerated water does not contain any fruit juice. A mere look at the label Ex. P6 and what is printed there ought to have convinced the court that there is no case for the accused that it contained any fruit juice. On the other hand it specifically mentions that it contained sugar, sacchrine, citric acid, synthetic essence and preservatives. So only synthetic essence is used and no fruit juice has been added. Learned District Magistrate has omitted to notice this and has gone wrong in thinking that it contained 25 per cent fruit juice. The acquittal cannot, therefore, be justified and it is set aside. Both the accused are found guilty and convicted of the offence charged. Each of the accused is sentenced to pay a fine of Rs. 25/-, in default to undergo simple imprisonment for one week. Time for payment of fine one month from this date. The appeal is allowed.