JUDGMENT - N.B. NAIK, J.:---These appeals have been filed by the State for enhancement of the sentence awarded to the respondents-accused by the Metropolitan Magistrate, 28th Court, Esplanade, Bombay, in three separate cases. 2. Briefly stated that prosecution case is as under: On March 22, 1974, at about 3 p.m. Kulkarni (P.W. 1), the Food Inspector accompanied by two panchas went to M/s. Aerated Water Factory at Chembur, of which accused No. 1 was the Manager and accused Nos. 2 to 4 were the servants. The Food Inspector demanded and purchased from accused No. 1 (i) Special Soda (9 bottles); (ii) Coco Cola; and (iii) Dukes Soda with Rogers container. He then gave a part of each sample to accused No. 1. The samples were sent to the Public Analyst who found that there was absolutely no adulteration whatsoever, and that the samples were of up to the prescribed standard. (It may however be noted that the report of the Public Analyst could not be traced in the file). However, as the accused had no licence and the Food Inspector Kulkarni thought that Coco Cola was misbranded, all the four accused were prosecuted in three separate cases in respect of the three separate samples. 3. Kulkarni (P.W. 1) the Food Inspector, was examined before charge. Accused No. 1 absconded. A charge was framed by the Magistrate for offences under section 16(1)(a)(i) read with Rule 50 and section 2(ix)(a) of the Prevention of Food Adulteration Act. 4. Accused Nos. 2 and 4 pleaded guilty to the charge. Accused No. 2 stated that he was only a servant in the factory and accused No. 4 went further and stated that the articles were found to be adulterated. Accused No. 3 did not even plead guilty to the charge. But he stated that the samples taken by the Food Inspector were found to be adulterated, and he also prayed for mercy. The learned Magistrate evidently thought that he had also pleaded guilty though the record does not state so. He therefore, convicted all the three accused. Dealing with the question of sentence he took note of the fact that all of them are only the servants of the factory which was owned and managed by accused No. 1 who has absconded. He also took note of the fact that accused Nos. 2 and 4 were young whereas accused No. 3 had passed 50. Dealing with the question of sentence he took note of the fact that all of them are only the servants of the factory which was owned and managed by accused No. 1 who has absconded. He also took note of the fact that accused Nos. 2 and 4 were young whereas accused No. 3 had passed 50. He also took note of the fact that these accused were not knowing whether the licence was taken by the manager or not and he, therefore, felt that a lenient view was called for and a sentence of imprisonment would be too harsh. Hence he sentenced the accused in all the three cases S.I. till the rising of the Court and to pay a fine of Rs. 100/-. 5. It is the correctness of that sentence which is challenged by the State in this appeal for enhancement of the sentence. 6. It may be mentioned that accused No. 3 has since died. The appeal survives only in respect of accused No. 2 and 4. 7. So far as the offence of sale of aerated water without a licence it being a breach of Rule 50 of the Prevention of Food Adulteration Rules, the offence would be clearly covered by the proviso to section 16 and in the peculiar circumstances of the case and in view of the reasons given by the Magistrate who has a discretion in the matter of sentence, I see no reason to interfere on that count. 8. With regard to the charge of alleged misbranding of Coco Cola, I really fail to understand how that offence could be said to have been brought home to these accused who have pleaded guilty to the charge without knowing the implication of the charge. There is no evidence furnished by the Food Inspector himself for finding a charge under section 2(ix)(a) of the Act. His evidence is that he asked for Coco Cola and Coco Cola was supplied to him. It is not his case that it was misbranded under section 2(ix)(a). Merely by saying Coco Cola was misbranded it could not be said that such an offence was committed. It was the duty of the Food Inspector to lead evidence to prove that allegation. Since Coco Cola was easily available and he had asked for Coco Cola and it was supplied. Merely by saying Coco Cola was misbranded it could not be said that such an offence was committed. It was the duty of the Food Inspector to lead evidence to prove that allegation. Since Coco Cola was easily available and he had asked for Coco Cola and it was supplied. I do not see how such an offence could be committed at least so far as the accused who were the servants of the factory are concerned. 9. Under the circumstances I see no reason to interfere with the sentence which is awarded and, therefore, all the three appeals are dismissed. -----