JUDGMENT

Dr. ANAND, J.:—The appellant was convicted for an offence under S. 7(1) read with Section 16(1-A) (i) of the Prevention of Food Adulteration Act 1954 (hereinafter the Act) by the Additional Judicial Magistrate, 1st Class, Trivandrum on 17-7-1981 and sentenced to suffer one year R.I. and to pay a fine of Rs. 2000/- and in default to undergo imprisonment for three months. The conviction and sentence were upheld by the Additional Sessions Judge, Trivandrum who dismissed his appeal on 28-10-1981. Criminal Revision Petition No. 459 of 1981 filed in the High Court of Kerala also failed on 8th August, 1984. It is, thereafter, that he has come up to this Court by appeal on special leave being granted.

2. On 12-2-1980, the Food Inspector of the Corporation of Trivandrum after disclosing his identity purchased from the appellant 600 gms. of ice-stick and paid Rs. 1.25 One of the samples was sent to the Public Analyst at Trivandrum, who vide report dated 6-3-1980 opined that the said sample contains artificial sweeteners sacharin and dulcin and is therefore adulterated. The Public Analyst also stated in his report that the use of dulcin in food articles is not permitted on account of the fact that "its consumption is injurious to health". According to the report of the Public Analyst, dulcin to the extent of 100.0 parts per million and sacharin to the extent of 90.0 parts per million was found present in the sample sent for analysis. A complaint was accordingly filed before the Additional Judicial 1st Class Magistrate, Trivandrum. The appellant pleaded not guilty and also exercised his right to have the sample analysed from the Central Food Laboratory. The sample was then sent to the Central Food Laboratory and after analysis of the sample, it opined that "the sample does not conform to the standards laiddown for ice-candy under the provisions of PFA Act 1954 and the Rules thereunder". It was found by the Central Food Laboratory that the sample contained "an artificial sweetener" identified as sacharin to the extent of 190 parts per million. The sample had also tested positive for presence of cane-sugar.

3. Before the trial court, it was urged that the ice-stick sold by the appellant to the Food Inspector PW 1 could not be treated as ice-candy and since no standard for ice-stick had been prescribed in the Act, the conviction of the appellant was not warranted. It was also argued that for the offence committed by the appellant the sentence imposed was not justified. The trial court, negatived both the contentions and recorded a finding of fact to the effect that the appellant had sold an article of food - ice-stick - to PW 1 for purposes of analysis and that the ingredients of the ice-candy and the ice-stick were the same and the standards prescribed for ice candy etc. were applicable to the article sold by the appellant also. It was further held that since the sample did not conform to the standards laid down for ice candy under the provisions of the Act and the Rules framed there under, as per the certificate of the Public Analyst, the sample was adulterated and in view of presence of dulcin. "the adulterant was injurious to health". The trial court held that the offence of the appellant squarely fell under Section 7 read with Section 16 (1-A)(i) of the Act. The sentence imposed is the minimum prescribed for the said offence. Similar arguments were raised in the appeal before the Sessions Court also. It was once again found, on facts, that the ice-stick sold by the appellant was an article of food and that the ingredients of the ice candy and the ice-stick were the same. It was also found that since the sample contained the prohibited artificial sweetener, sacharin it was adulterated and the conviction and sentence were justified. Similar grounds were once again raised before the High Court which also found :

"In this case, therefore, from the evidence available especially Ext. P9 report, it is clear that the petitioner sold ice ca