Mukesh Kumar vs State of Haryana

V.S. Aggarwal, J.

This is a petition filed by Mukesh Kumar under Section 482 of the Code of Criminal Procedure. It is prayed that complaint dated 22.8.1988 and all subsequent proceedings arising thereto be quashed.

The relevant facts are that the Food Inspector on 23.6.1988 inspected the premises of Mukesh Kumar at Grover Soda Water Factory, Feroz Gandhi Nagar, Faridabad. Mukesh Kumar was having in his possession about 480 bottles of sweetened carbonated water (lemon) for public sale. Bottles were purchased and divided into 3 equal parts. The bottles were thereupon sealed and labelled. The bottles were wrapped in strong thick paper. The ends of the paper were pasted with gum. Signatures of Mukesh Kumar were obtained on both the paper slips and the wrappers. Each bottle was secured by means of strong twine and sealed with the seals of Medical Officer and Food Inspector at the spot.

One sealed bottle alongwith a memorandum in form VII was sent to Public Analyst, Karnal for analysis in a sealed packet through Railway Parcel on 24.6.1988. The other two sealed bottles alongwith 2 copies of memorandum in Form VII were deposited with the local Health Authority on 24.6.1988. Report was received from the Public Analyst and it indicates .

"Total Reducing sugar expressed as sucrose 11.54%

Saccharine absent Citric Acid present

Dulocin absent Tartaric Acid absent

Cyclamate absent Test for colour No added coaltar dye detected.

P4000 absent

and am of the opinion that the sample is in a plain glass stoppered bottle and contains suspended matter in appreciable quantity."

Keeping in view the above report, the complaint was filed in Court alleging that an offence punishable under section 7/16 of the Prevention of Food Adulteration Act, 1954 has been committed as the petitioner Mukesh Kumar had kept the said articles of food in store for sale which contain suspended matter in appreciable quantity. The petitioner seeks quashing of the said complaint and the subsequent proceedings.

I have heard learned counsel for the petitioner as well as learned AAG appearing for the State of Haryana.

The sole question agitated in Court was as to if on the basis of the material placed on record, it could be held that the sweetened carbonated water was adulterated in terms of the Prevention of Food Adulteration Act, 1954 (hereinafter, described as the ''Act''). The expression ''Adulterated'' has been defined in section 2(ia) of the Act. Clauses (a), (b), (1) & (m) are relevant and are being reproduced below for the sake of facility :

(a) If the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be;

(b) if the article contains any other substance which affects, or if the article is so processed as to affect injuriously the nature, substance or quality thereof;

(c)

(d)

(e)

(f)

(g)

(h)

(i)

(j)

(k)

(1) If the quality or purity of the article falls below the prescribed standard or it its constituents are present in quantities not within the prescribed limits of variability which renders it injurious to health;

(in) 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".

It is obvious from the aforesaid that clauses (a) and (b) of Section 2(ia) of the Act will not be attracted because it is not the case even of the prosecution that articles sold by the petitioner were not of the nature, substance or quality demanded by the Food Inspector or that articles contain any other substance, which affects injuriously the nature, substance or quality thereof.

Learned counsel for the petitioner urged that there is no prescribed standard of sweetened carbonated water and that unless it is reported or found that the article was injurious to health, it cannot be taken to be adulterated and in this regard reliance is placed on Clauses (1) & (m) of Section 2(ia) of the Act.

On the contrary learned counsel for the respondents urged that since it has been found that the sample contains suspended matter in appreciable quantity it must be taken to be adulterated.

Before proceeding further, it becomes necessary to see the definition of Standards of Quality prescribed in Appendix B to the Act with respect to carbonated water mentioned in A.01.01, which reads as under :

"A.01.01 Carbonated Water means potable water impregnated with carbon dioxide under pressure and may contain any of the following singly or in combination;

Sugar, liquid glucose, dextrose, monohydrate, invert sugar, fructose, honey, saccharine not exceeding 100 p.p.m. fruits and vegetables extractives and permitted flavoring, colouring matter, preservatives, emulsifying and stabilizing agents, citric acid, (fumaric acid and sorbitol), tartaric acid, phosphoric acid, lactic acid, ascorbic acid, maleic acid, (edible gums such as guar, karaya, arabic, carobean, furcellaran, tragacanth, gum ghatti), edible gelatine, albumin, licorice 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 (total sugars expressed as sucrose) shall not be less than five."

It is obvious from the definition referred to above that under section 2(ia) of the Act and also the definition of Standards of Quality pertaining to carbonated water that an article of food will be considered as adulterated, if its quality or purity falls below the prescribed standard or the contents are present in quantities which are less than of the prescribed limit. Merely because if some suspended matter was found in appreciable quantity and it was not found to be injurious to health, it would not be possible to state that the carbonated water was adulterated. It is not the case of the prosecution that the said matter was injurious to health. In the absence of any such assertions by the prosecution or reliance on any further evidence in this regard, plea of the petitioner must prevail.

Reference with advantage can well be made to certain precedents, on the subject, of this Court. In the case of Ishwar Dass v. The State of Haryana, 1985(2) Prevention of Food Adulteration Cases 271, somewhat in similar circumstance, it was held that bare existence of any extraneous substance in a article of food will not make it adulterated, unless it is shown that the same is injurious to health. The same view prevailed in the case of N.S. Jain v. State of Punjab, 1987(1) Prevention of Food Adulteration Cases 127. It was concluded that mere presence of the suspended matter would not make the sample adulterated. In Paragraph 6, it was held :

"Same argument applies to the suspended nonfatty particles of curd found in the sample. The mere presence of the suspended matter would not make the sample adulterated. The analysing authority did not express the opinion that such suspension had affected injuriously the nature, substance or quality of the food article. Similar view was taken by this Court in Kashmiri Lal v. Sate of Punjab, 1984(2) F.A.C. 105."

Close to the facts of the present case is also the decision in the case of Parmod Kumar v. State of Haryana, 1993(2) Recent Criminal Reports 407 . Therein too, sample was taken of carbonated water and it was not found that the Saccharine in it was injurious to health of a person. It was concluded that carbonated water could not be held to be of sub standard quality. Therefore, it must be held that in the facts of the present case, it cannot be concluded that the carbonated water could be held to be sub standard in quality or in other words adulterated. No useful purpose would thus be served in allowing the prosecution to continue.

For these reasons, I accept this petition and quash the complaint dated 22.8.1988 and all subsequent proceedings before the learned trial court.