1. Petitioner, who is the second accused in S.T.No.347/1993 of the Judicial First Class Magistrate's Court-II, Neyyattinkara, has unsuccessfully challenged his conviction and sentence before the Sessions Court, Thiruvananthapuram, through Criminal Appeal No.49/1995. The learned Additional Sessions Judge concurred with the findings entered by the trial court, confirmed the conviction and sentence, and dismissed the appeal.

2. Samples of ice cream were drawn by PW 1, Mobile Squad Food Inspector, Thiruvananthapuram, from the first accused. The present petitioner, being the owner of the shop, who is the licensee, was arraigned as A2. A1 died during the pendency of the appeal before the learned Additional Sessions Judge and thereby, the charge against him abated.

3. On going through the procedure adopted by PW1, it seems that he had complied with all the legal formalities. The sampling was proper, and the sample was forwarded to the Public Analyst, and he obtained Ext.P12 report. On getting Ext.P12 report, the complaint was preferred before the Judicial First Class Magistrate's Court-II, Neyyattinkara. Thereupon, the parties, on getting notice under Section 13(2) of the Prevention of Food Adulteration Act, 1954, approached the court and applied for forwarding the sample to the Central Food Laboratory.

4. The learned Magistrate directed the Local Health Authority (LHA) to produce the second sample before Court for forwarding it to the Central Food Laboratory. Ultimately, the sample was forwarded to the Central Food Laboratory and on analysis, Ext.P16 certificate was received, which also revealed that the said food article does not conform to the standard prescribed for ice cream in Appendix BA.11.02.07 of the Prevention of Food Adulteration Rules, 1955 and thereby, the same is adulterated.

5. There were no procedural lapses either on the part of PW1 or on the part of the Local Health Authority. Both the courts below entered concurrent findings that the said food article is adulterated and thereby entered the conviction and sentence. The petitioner stands sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/-, in default, to undergo simple imprisonment for three more months. Presently, the questions are confined to the conviction and sentence relating to the second accused, who is the petitioner herein.

6. The one and only point argued by the learned counsel for the petitioner is based on Sections 23(1A)(ee) and (hh) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the 1954 Act" ). According to the learned counsel for the petitioner, as the laboratories where samples of articles of food or adulterants to be analysed by public analysts under the Act have not been defined within the meaning of Section 23(1A)(ee) of the 1954 Act, the report of the Public Analyst in this case cannot be looked into. Further, according to the learned counsel for the petitioner, even in a case where by having recourse to the provisions under Section 13(2) of the 1954 Act, the second sample was sent to the Central Food Laboratory for analysis, the mandatory provision contained in Section 23 (1A)(hh) is applicable. In short, the argument is that, in the case of a report by the Public Analyst, it will be hit by the mandatory provision contained in Section 23(1A)(ee) as long as the laboratories are not defined within the meaning of the said provision. Further, even in cases where the second sample was sent to the Central Food Laboratory, the accused will be prejudiced in two ways, according to the learned counsel for the petitioner. Firstly, he will be losing an opportunity to have a proper analysis of the concerned food articles through a proper laboratory as contemplated under Section 23(1A)(ee). Secondly, even in case where there is analysis by the Central Food Laboratory, the accused will be prejudiced under Section 23(1A)(hh) as long as the method of analysis has not been defined. I