K. Sadasivan, J.
1. This appeal is by the State against acquittal in a prosecution under the Prevention of Food Adulteration Act, 1954. The accused was prosecuted Under Section 7(i) and Section 16(1)(a)(i) for selling carbonated water (orange crush) which did not con form to the standards prescribed in the Act. On analysis by the Food Inspector, the Sample taken from the accused was found to contain artificial sweetener (saccharin) at 410.0 parts per million, 0.5 per cent total solids, and 0.46 per cent total sugars. The said sample was therefore, found to be adulterated. The learned Magistrate has acquitted the accused, basing solely on a Single-Bench decision of this Court reported in Food Inspector, Tellicherry v. Chandu 1969 Ker L T 709 wherein it was held that prepared tea added with sugar, if not treated with a preservative, can. not retain its characteristics for a long time. In the present case also no preservative was added, and so, the learned Magistrate, relying on the above decision, came to the conclusion that the beverage changed its form as seen from the analyst's report since no preservative was added.
The above decision of the learned Single Judge has been overruled by a Division Bench of this Court in Food Inspector, Cochin Corporation v- K. M. Alikunju, 1970 Ker L T 987. So, the reasoning of the learned Judge is no longer available for acquitting the accused in the present case. learned Counsel for the accused contends that by chemical action the saccharin content; may go up, if no preservetive is added, and on that reasoning the order of acquittal can be sustained.- This aspect of the matter has not been dealt with by the learned Magistrate. Moreover, only an expert will be able to swear to the chemical changes of the substance, if no preservative is added. would therefore, set aside the order of acquittal and remand the case to the learned Magistrate for a retrial and disposal according to law. Parties will be at liberty to adduce additional evidence, if necessary.