The main legal point established in the judgment is that ice-fruit is considered 'food' under the Prevention of Food Adulteration Act, and the addition of artificial sweeteners in ice-fruit constitutes an offence under the Act.

NARAYANA PILLAI, J.

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. Foot is defined 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 S. 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 sugar like 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