Judgment :- 1. The revision petitioner has been convicted by the Sub Divisional Judicial Magistrate, Chengannur in C. C. 324 of 1977 under S.16(1A)(i) read with S.7(1) and S 2(1-a)(b)(l)(h) of the Prevention of Food Adulteration Act, 1954 (hereinafter called the Act) read with R.44A and Appendix B item A. 07 04 of the P.F A. R.1955 (hereinafter called the Rules) and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs. 2000/- and in default of payment of fine to suffer simple imprisonment for three months. The conviction and sentence were unsuccessfully challenged in Criminal Appeal No. 109 of 1978 on the file of the Additional Sessions Judge, Mavelikara. 2. Pw2, the Mobile Food Inspector, attached to the Mobile Vigilance Squad, Trivandrum went to the shop of the revision petitioner, by name, Royal Ice Fruit Company on 7-6-77 at 7 45 a.m , found ice candy kept in the fridge for the purpose of sale and after satisfying the formalities required by law in the presence of witnesses, purchased 60 numbers of ice candy weighing 1800 grams and dealt with the sample in accordance with law. One of the samples sent to the Public Analyst brought forth Ext. P2 report showing the sample to be adulterated. Thereupon on the direction of the Local (Health) Authority a complaint was laid against the petitioner and a copy of the report appears to have been sent to the revision petitioner. The revision petitioner pleaded not guilty before the trial court. Prosecution examined three witnesses and relied on Exts. P1 to P8. "The accused admitted the purchase of sample from him, but contended that the result of analysis might have been effected by the fact that ice candy was kept for some time in a vessel taken from the shop for the purpose of allowing the ice to melt. It is admitted that it was after ice melted into water that it was poured into three bottles. The trial court accepted the prosecution case and convicted and sentenced the revision petitioner as above and the same was confirmed by the appellate court. 3. It is admitted that it was after ice melted into water that it was poured into three bottles. The trial court accepted the prosecution case and convicted and sentenced the revision petitioner as above and the same was confirmed by the appellate court. 3. The learned counsel for the revision petitioner urged before me that the conviction is vitiated on account of the violation of the provisions of S.13 (2) of the Act, violation of R.14 and 17 of the Rules, on the ground that the report of the Public Analyst is perfunctory and does not contain any data and on the ground that the article which was sampled by the Food Inspector is really not an article of food coming within the purview of the Act. 4. On a consideration of the facts and circumstances as well as the law bearing on the question, I am inclined to agree with him on the last point urged before me. Therefore I do not propose to consider the several other questions raised by him. Appendix B item A. 07.04 relates to ice candy and reads thus after the amendment introduced on 20 91976: "A.07 04 'Ice-candy or Ice Lollies or Edible Ice' by whatever name it is sold, means the frozen ice produce which may contain the permitted flavours and colours, sugar, syrup, fuit. gruit, juices, nuts, cocoa, citric acid, stabilizers or emulsifiers not exceeding 0.5 per cent. It shall not contain any artificial sweetener." Before the amendment the article read thus: "Ice-candy means the frozen ice produce containing sugar with or without the addition of permitted colouring or flavouring substances." 5. Ext. P2 report of the Public Analyst shows the result of the analysis as follows: Table:#1 The Public Analyst recorded his opinion that the said sample contains artificial sweeteners sacharin and dulcin and is therefore adulterated. The use of dulcin in food is not permitted on account of the fact that it is injurious to health. 6. It is argued by the learned counsel for the revision petitioner that if the sample contains only frozen ice and does not contain sugar or any other ingredient as contemplated in item A 07.04. it cannot be treated as "food" inasmuch as frozen ice being merely water is not an article of food. 6. It is argued by the learned counsel for the revision petitioner that if the sample contains only frozen ice and does not contain sugar or any other ingredient as contemplated in item A 07.04. it cannot be treated as "food" inasmuch as frozen ice being merely water is not an article of food. It is argued by him that the sample taken in this case did not contain sugar or any other ingredient which could be regarded as food, and hence must be treated as only water in solid form which is excluded from the definition of food. If that be so, it is clear that the article purchased by the Food Inspector cannot be treated as article of food and the revision petitioner cannot be prosecuted for selling adulterated food in violation of the Actor the Rules. 7. S.2(v) of the Act defines food thus: 'food' means any article used as food or drink for human consumption other than drugs and water and includes (a) any particle which ordinarily enters into, or is used in the composition or preparation of, human food, (b) any flavouring matter or condiments, and (c) any other article which the Central Government may having regard to its use, nature, substance or quality, declare, by notification in the Official Gazette, as food for the purposes of this Act." S. 7 deals with prohibition of sale or manufacture of articles of food. S.16 prescribes penalties for various offences contemplated under the Act and the Rules. A careful reading of S.16 will show that whenever adulteration or mis-branding is mentioned, it is mentioned only with reference to an article of food. S.23 of the Act empowers the Central Government to make rules providing for standard of quality and fixing the limits of variability etc. in regard to articles of food. R.44 for the violation of which the revision petitioner has been convicted also relates to article of food. Appendix B has been prepared on the strength of R.5 which lays down that the standards of quality of articles of food shall be as defined in the appendix. Thus it is clear that in order that an act or omission can be penalised under the provisions of the Act or the Rules, the act or omission must be with reference to an article of food as defined in S.2(v) of the Act. 8. Thus it is clear that in order that an act or omission can be penalised under the provisions of the Act or the Rules, the act or omission must be with reference to an article of food as defined in S.2(v) of the Act. 8. S.2(v) excludes water from the purview of the definition of food. Oxford Dictionary defines water as "colourless, transparent, tasteless, scentless compound of oxygen and hydrogen in liquid state convertible by heat into steam and by cold into ice". It is evident that water is only one of the three states of a chemical compound containing oxygen and hydrogen in a fixed proportion. When the definition in S.2(v) of the Act excludes water from its purview, it must be taken that it excludes from its purview other states of water also, including ice, which is only frozen water. 9. The definition of ice candy as it appears now and prior to the amendment makes it clear that ice in order to be regarded as ice candy, must contain some other ingredient in addition of frozen water. Under the definition which existed prior to amendment, frozen water together with sugar was regarded as ice candy. Under the definition as if exists now, frozen water could be regarded as ice candy only in the presence of one of the other of the ingredients mentioned in appendix B. A 07.04. If a particular article consists only of water in solid form and nothing else as mentioned above, it cannot be regarded as an article of food for the purpose of the Act. Had the sample contained at least sugar, the sample could have been treated as ice candy for the purpose of the Act and the Rules. But this particular sample did not contain sugar or any of the other ingredients mentioned in Appendix B. A.07.04. Therefore it could be regarded only as water which is excluded from the definition of food. This reasoning has been upheld by this Court in the decision in Crl. R. P. 83/79 following a decision of the Orissa High Court noticed in Banabihari v. Food Inspector (1975 Crl. Law Journal NOC 23). I am in respectful agreement with the view taken in this decision This is no doubt an anomalous position; but the remedy lies in the hands of the legislature and not in the hands of this court. 10. Law Journal NOC 23). I am in respectful agreement with the view taken in this decision This is no doubt an anomalous position; but the remedy lies in the hands of the legislature and not in the hands of this court. 10. For this reason alone the prosecution and the conviction must be held to be bad in law. They are set aside. The revision petitioner is acquitted of the charges against him. His bail bonds are cancelled. The revision petition is accordingly allowed. Fine if any paid will be refunded to him.