IMPORTANT POINT
A food product can be considered adulterated, only if it is proved, that the foreign matter present in it, is injurious to health.

JUDGMENT

B. S. Yadav, J. - Kashmiri Lal, the present petitioner, was convicted under Section 7 read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for short 'the Act') by the learned Judicial Magistrate 1st Class, Muktsar and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/-. Rigorous imprisonment for three months in default of payment of fine was also awarded. It may be mentioned here that the learned Magistrate had convicted the petitioner for mis-branding as well as for the presence of 'suspended matter' in the sample bottles of sweetened carbonated water. The petitioner preferred an appeal which was heard by learned Additional Sessions Judge, Faridkot. He set aside the conviction and sentence of the petitioner for mis-branding. However, as only one conviction and sentence was recorded by the learned trial court against the petitioner, his conviction and sentence under Section 7 read with Section 16(1)(a)(i) of the Act was maintained. The petitioner has now filed this revision petition.

2. The prosecution story as gathered from the evidence is that on 4th May, 1979, P.W. 1 Dr. Sham Lal Chalana, who in those days was invested with the powers of Food Inspector, accompanied by P.W. 3 Dr. Hari Om Goyal visited the premises of the Sodawater factory of the petitioner situated at Muktsar. At that time, he was found in possession of 240 bottles of sweetened aerated water (Lemon) for sale. After disclosing his identity, Dr. Sham Lal Chalana purchased 9 bottles of sweetened aerated water from the petitioner against payment of Rs. 13.15. He divided the purchased bottles in three parts, each containing three bottles. He complied with the other provisions about labelling, sealing and corking each part. One of the parts of the sample was sent to the Public Analyst, who vide report Exhibit P. D. declared the result of his analysis as under ;-

"Physical Appearance: Colourless contents in three bottles, one marked 'cocacola' with crown cork marked 'Campa Cola' second marked 'coke' with crown cork marked 'Soda special' and third plain bottle with crown cork marked 'Campa Cola' Suspended matter present in all the three bottles.

Sachharin = Negative

Dulcin= Negative

Sucrose=Positive 12.33%

Added Colour=Appears to have no added colour

Cyclamate=Negative and am of the opinion that the analytical data of the contents is within the specification laid down for sweetened carbonated water, but the contents are filled in 'coca cola' 'coke' and plain bottle with crown corks described above, Suspended matter present in all the three bottles."

3. On receipt of the report of the Public Analyst, the Food Inspector launched the prosecution against the petitioner.

4. At the close of the prosecution evidence, the petitioner was examined under Section 313 of the Code of Criminal Procedure. He denied the prosecution allegations. He further took up the plea that on the day in question, he was present at his shop where he sold bottle and cigarette. The Soda Water Factory was being run by his son. He had no concern with the same. A boy, alongwith a constable, came to his shop. On the asking of the constable he went to the factory of his son. His son was not present there. Petitioner's signature were obtained on certain papers.

5. In his defence, he examined D.W. 1 Krishan Kumar, D.W. 2 Roop Singh, D.W.3 Chuni Lal and D.W. 4 Mohan Lal. However, it is not necessary to dwell on the defence evidence because before the appellate Court it was not contested that the Food Inspector had purchased the bottles containing the sweetened aerated water from the petitioner.

6. Learned counsel for the petitioner vehemently argued that the petitioner bas wrongly been convicted by the learned Courts below on the ground that 'suspended matter' was found present by the Public Analyst in the bottles of sweetened aerated water purchased from him. He argued that the mere presence of 'suspended matter' would not make the