P. Narayana Pillai, J.
1. This is an appeal from acquittal in a prosecution under the Prevention of Food Adulteration Act. 1954. hereinafter referred to as the Act, for sale by the respondent on November 21, 1969 to the Food Inspector, Thripunithura, of 600 grams of adulterated Ice-fruit. After dividing the ice-fruit purchased into three equal parts and filling them in separate bottles and adding preservatives a sample bottle was sent by the Food Inspector to the Public Analyst who on analysis found that the sample contained saccharin and Dulcin. artificial sweeteners, and was therefore, adulterated. It was then that complaint was filed before the Magistrate by the Food Inspector against the respondent under the Act. The respondent raised several contentions but all of them, except the one relating to ice-fruit being not food, were found against him by the Magistrate. It was following a single Judge's decision of this Court in Criminal Appeal No. 311 of 1971 (Ker). that the Magistrate held that ice-fruit was not food and acquitted the respondent.
2. In Criminal Appeal No. 311 of 1971 (Ker) also it was ice-fruit that was involved. The learned Judge who disposed it of declined to interfere with the acquittal on the ground that there ice-fruit had not been alleged or proved to be ice-candy and therefore, food.
3. The question is whether ice-fruit is ice-candy and consequently food as defined in the Act. Food is defined in Section 2(v) of the Act as:
any article used as food or drink for human consumption other than drugs and water and includes-
(a) any article which ordinarily enters into, or is used in the composition or preparation of human food, and
(b) any flavouring matter or condiments.
Any article generally used as food or drink other than drugs and water comes within that definition.
4. In Appendix B in the Prevention of Food Adulteration Rules. 1955, certain articles of food are mentioned. Rule 44 (g) prohibits sale of articles of food which contain any artificial sweetener, except where such artificial sweetener is permitted in accordance with the standard laid down in Appendix B. Appendix B is not exhaustive with regard to the articles of food. It only prescribes the standard for addition of artificial sweetener in the items of food dealt with in it. 'Food' defined in Section 2(v) is the genus of which the items referred to in Appendix B are only some of the species. Therefore from the mere fact that an article of food is not included in Appendix B it cannot be taken that it is not food. It would be food if it comes within the definition of that word in Section 2(v) irrespective of the question whether it is included or not in Appendix B.
5. Ice-candy is an item expressly included in Appendix B. It is mentioned there as meaning:
frozen ice produce containing sugar, with or without the addition of permitted colouring or flavouring substances.
In Webster's Third New International Dictionary one of the meanings given for the word 'candy' is:
a food made of a sugar paste or syrup often enriched and varied with colouring and flavouring (as chocolate) and filling (as fruits or nuts) and shaped into various attractive forms.
It is sugar or sugarlike crystal made sweet, palatable or agreeable. Ice-fruit and Ice-nut are only different forms of ice-candy. With great respect we find ourselves unable to agree with the view that unless ice-fruit is alleged and proved to be food It cannot be taken as food. It is common knowledge that ice-fruit is generally used for human consumption as, food. Ice-fruit is a form of ice-candy and it is food.
6. Rule 44 prohibits sale of articles of food which contains any artificial sweetener, except where such artificial sweetener is permitted in accordance with the standard laid down in Appendix B and For ice-candy which finds a place in Appendix B Saccharin and Dulcin are not permitted to be added. The respondent is, therefore, guilty of the offence punishable under Section 16(1)(a)(ii) read with Section 7(v) of the Act and Rule 44 (g) of the Rules. Accordingly this appeal is allowed the acquittal of the respondent is set aside., he is convicted and taking into consideration the fact that he is a poor hawker aged only 20 he is fined Rs, 25/- and in default to undergo simple Imprisonment for one week.
E.K. Moidu, J.
7. I agree. The question is whether the accused has committed an offence under Section 16(1)(a)(ii) and Rule 44 (g) read with Sections 7(v) and 2(v) of the Prevention of Food Adulteration Act. 1954. Food has been defined in Section 2(v) and it has been quoted already in this judgment. To constitute food for the purpose of the Act it is enough if the article in question is usable as food or as drink for human consumption. The word 'use' which is to be found in Section 2(v) of the Act obviously means usable or capable of being used. If that be s0 ice-fruit is an article of food. If it is an article of food the prohibition contained in Rule 44 (g) comes into operation. Sections 2, 7 and 16 state:
'any article of food'. Rule 5 reads:Standard of quality of the various articles of food specified in Appendix B to these rules are as defined in that appendix.
Rule 44 (g) reads'
any article of food which contains any artificial sweetener, except where such artificial sweetener is permitted in accordance with the standard laid down in Appendix B.
This Rule is also clarified in respect of any article of food which is exposed for sale with a label. Rule 47 reads:
47. Addition of artificial sweetener to be mentioned on the label. - Saccharin or any other artificial sweetener shall not be added to any article of food, except where the addition of such artificial sweetener is permitted in accordance with the standards laid down in Appendix B....' (the latter portion Is not required for the purpose of this case.)
Rule 44 (g) read with Rule 47, makes it clear that any article of food if it is sold against the prohibitions contained in Section 7 or 16 will be an offence. The fact that no standard has been prescribed for ice-fruit or any other article of food under Appendix B is not an argument to hold that it is not really an article of food as defined in the Act. Public Analyst found that ice-fruit is an article of food and that it contained 208 parts per million of saccharin and 160 parts per million of Dulcin which are artificial sweeteners. The offence against the accused on that basis is made out. It cannot be disputed that ice-fruit is a produce of ice. Ice- candy is defined in item A. 07.04-as the frozen ice produce containing sugar with or without the addition of permitted colouring or flavouring substances. It is true that no separate standard is prescribed for ice-fruit. But it is unnecessary as the standard is implicit in the definition of ice-candy itself. In any case non-specification of a standard for ice-fruit does not absolve a vender from conforming to the standard that is necessarily implied in respect of ice-candy. If extraneous materials can freely be added one fails to see the need for prescribing quality at all-in such circumstances it has to be held that the addition of artificial sweetener like Saccharin and Dulcin by bringing down the purity in the composition of ice-fruit as an article of food amounts to an offence under the Act.