Judgment :- PADMANABHAN, J. The Food Inspector, Palghat Municipality has come up in appeal against the acquittal of the respondent by the Chief Judicial Magistrate, Palghat in S.T.C. No. 9 of 1981. The complaint filed by the appellant was for violation of Rr. 44(g) and 47 of the Prevention of Food Adulteration Rules read with S. 7(i) and made punishable under S. 16(1)(a)(i) and (ii) of the Prevention of Food Adulteration Act for having manufactured for sale and sold adulterated ice-candy in the form of stick. 2. Acquittal was on the sole ground that the sample is not an item of food as defined in the Prevention of Food Adulteration Act and hence even though it contained prohibited sweeteners, no offence is made out. That finding was based on the principles laid down in a Single Bench decision of this Court in Babu v. Food Inspector, Tiruvalla Municipality, 1981 Ker LT 75 : (1981 Cri LJ NOC 109). That case also dealt with adulteration in respect of ice-candy. It was held therein : "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. Section 2(v) excludes water from the purview of the definition of food. 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. Under the definition which existed prior to amendment, frozen water together with sugar was regarded as ice-candy. Under the definition as it exists now, frozen water could be regarded as ice candy only in the presence of one or 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. 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 Item A.07.04. Therefore it could be regarded only as water which is excluded from the definition of food." 3. The correctness of the above decision was doubted by a learned single Judge before whom the appeal came up for arguments. Hence this matter was referred to us. 4. It was argued for the respondent that in case we are holding that the decision in Babu's case, 1981 Ker LT 75 : (1981 Cri LJ NOC 109) has not laid down the law correctly, the matter has to be remanded to the trial Court for fresh decision after entering findings on certain other aspects which were not considered. Therefore we shall first advert to those aspects and then proceed to consider whether adulteration of an item of food article is actually involved. 5. After having heard both sides, we are not satisfied that there is any necessity for a remand as requested. In our opinion the only aspect that really calls for decision on the merits is the correctness of the ground on which acquittal was ordered. The appellant and three other witnesses were examined. Exts. P1 to P16 which include all the relevant documents necessary in proof of the formalities were produced and proved. Observance of all the formalities enjoined by the Act and Rules right from the point of purchase and sampling up to compliance of the provisions of S. 13(2) was spoken to by the complainant examined as P.W. 2. He has proved the relevant documents also in support. P.W. 1, a clerk in the Health Section of the Palghat Municipality, was examined to prove that the respondent is running an ice factory under licence. That he is the owner and dealer is not disputed by the respondent. P.W. 3, an independent witness, who was present at the time of purchase and sampling and who attested Ext. P7 mahazar, was also examined. That he is the owner and dealer is not disputed by the respondent. P.W. 3, an independent witness, who was present at the time of purchase and sampling and who attested Ext. P7 mahazar, was also examined. It is true that he turned hostile and said that he was not present at the time of purchase and sampling and that the mahazar was got signed by him in his shop. P.W. 4 is the peon of P.W. 2. He was also present at the time when the complainant-Food Inspector took action. He supported the evidence of the Food Inspector in all respects. In fact the Magistrate considered the evidence and found that all the formalities enjoined by the Act and Rules were properly complied with. He also found that there was no serious dispute on those questions. The only objection raised before the Magistrate was that the sample was taken before the manufacturing process was over. Now there is absolutely no scope for any contention that any formality was not complied with. 6. Apart from the contention based on the decision in Babu's case, 1981 Ker LT 75 : (1981 Cri LJ NOC 109) three other contentions were raised by the counsel for the respondent before us at the time of arguments. They are (1) The process of manufacture of ice candy was going on and it was not complete when the sample was purchased, (2) The formalities were observed in the absence of the respondent and he only signed the papers as per the direction of the Food Inspector after everything was over, and (3) There was no independent witness present at the time when the Food Inspector took action. We are of opinion that none of these contentions is available to the respondent. On the first contention, it has only to be stated that even on the showing of the respondent there was no process of manufacture to be completed. The article was already manufactured and kept in the freezer. The only process to be undergone in the freezer is the process of cooling. Even conceding that it is a process of manufacture, that process was also over when the sample was purchased. The second contention was not one taken before the trial Court when witnesses were questioned, when the respondent himself was questioned under S. 313 of the Criminal P.C. or even at the time of arguments. Even conceding that it is a process of manufacture, that process was also over when the sample was purchased. The second contention was not one taken before the trial Court when witnesses were questioned, when the respondent himself was questioned under S. 313 of the Criminal P.C. or even at the time of arguments. The evidence of witnesses shows that the respondent himself was present and he signed the relevant papers including Exts. P5 to P7 and received the price also. On the third contention it has only to be stated that under S. 10(7) the duty of the Food Inspector is only to call one or more independent persons to be present when he takes action. If independent persons are not present or if the persons present refuse to yield to the request of the Food Inspector, he cannot comply with that provision. S. 10(7) has been introduced only to ensure that the Food Inspector takes action properly and impartially. The inability to get independent witnesses will not render the action of the Food Inspector illegal. Even without the presence and attestation of independent witnesses, the evidence of the Food Inspector could be accepted, if found acceptable. In this case actually the Food Inspector called an independent witness who attested the mahazar. The only thing is that he turned hostile in the box. There is absolutely no reason to reject the evidence of P.W. 2 corroborated by the documents and supported by the evidence of P.W. 4. Therefore there is no point in contending that S. 10(7) has not been properly complied with. As earlier stated, admittedly, the respondent is the owner and dealer. There is no dispute regarding the fact that the article was manufactured and kept for sale in the freezer. Sale to the Food Inspector is also not disputed. If so, compliance of all the formalities enjoined by the Act and Rules must be taken as proved. Therefore no question of remand of the case arises as requested for. 7. The only other question to be considered is whether the sample is an item of food. What was demanded by the Food Inspector and sold by the respondent as evidenced by Exts. P5, P6 and P7 was ice candy. The sample was sent for analysis and analysed by the Public Analyst as if it is ice candy. 7. The only other question to be considered is whether the sample is an item of food. What was demanded by the Food Inspector and sold by the respondent as evidenced by Exts. P5, P6 and P7 was ice candy. The sample was sent for analysis and analysed by the Public Analyst as if it is ice candy. Thereafter the respondent applied to send one of the remaining samples to the Central Food Laboratory. It was accordingly sent for analysis as if it is ice candy. Ext. C1 certificate of the Director of Central Food Laboratory shows that the sample was analysed as if it was ice candy. The report of the public analyst that the sample is adulterated now stands superseded by Ext. C1 certificate of the Director of Central Food Laboratory. Ext. C1 is also to the effect that the sample contains artificial sweeteners identified as saccharine and dulcin and the sample does not conform to the standards laid down for ice candy under the provisions of the Prevention of Food Adulteration Act and Rules. The relevant portion of Ext. C1 reads : "1. Physical appearance - Yellow coloured liquid. 2. Test for presence of artificial colouring matter-positive and identified as 'tartrazine' colour. 3. Test for presence of cane sugar - Negative. 4. Test for presence of artificial sweeteners : (a) Saccharine - Present with a quantitative limit of 243 PPM. (b) Dulcin - present with a quantitative limit of 25 PPM". 8. Section 2(v) of the Prevention of Food Adulteration Act may be extracted below : "food" means any article used as food or drinks 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, (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". 9. Flavouring matter or condiments are also included within the definition of food. Condiment is something used to season the food such as sauce, spice or relish. It is something used to give additional flavour to food as mustard or spice. Even such an item is described as being included within the definition of food. 9. Flavouring matter or condiments are also included within the definition of food. Condiment is something used to season the food such as sauce, spice or relish. It is something used to give additional flavour to food as mustard or spice. Even such an item is described as being included within the definition of food. Under S. 2(v)(c) any other article which the Central Government may having regard to its use, nature, substance or quality, declare, by notification in the Gazette, as food for the purpose of the Act also will stand included as items of food. Water and drugs alone are excluded. So far as the exclusion is concerned, we need take into account only water for our purpose. Appendix B Item A.07.04 relating to ice candy as it stood before the amendment of 20-9-1976 read : "Ice-candy means the frozen ice produce containing sugar with or without the addition of permitted colouring or flavouring substances." 10. Sugar was a must and presence of flavouring or colouring substances was not so. After the above amendment the item reads : "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, fruit, fruit juices, nuts, cocoas, citric acid, stabilizers or emulsifiers not exceeding 0.5 per cent. It shall not contain any artificial sweetener." Now after the amendment dt. 11-2-1982 as Item A.7.04.01, the definition is : "Ice-candy means the frozen ice produce which may contain fruit, fruit juices, cocoa, nuts, citric acid, permitted flavours and colours. It may also contain permitted stabilizers and/or emulsifiers not exceeding 0.5 per cent by weight. It shall contain sugar not less than 10 per cent by weight. It shall not contain any artificial sweetener." We are concerned only with the definition as it stood after 20-9-1976 and prior to 11-2-1982. That was the period when sample was purchased and prosecution instituted. The definitions prior to 20-9-1976 and subsequent to 11-2-82 made the presence of sugar a must for ice candy. But during the relevant period there was no such restriction. During that period what was required was only that the item should be frozen ice produce. The items shown as "may contain in the frozen ice produce" are permitted items. They may or may not be there in the sample. But during the relevant period there was no such restriction. During that period what was required was only that the item should be frozen ice produce. The items shown as "may contain in the frozen ice produce" are permitted items. They may or may not be there in the sample. Preparation of frozen ice with any one of the permitted or prohibited ingredients could be considered as a frozen ice produce. If that is an article used as food or drink for human consumption it will come within the definition of food irrespective of the fact that frozen ice by itself could be said to be water. Even a preparation of frozen ice with only permitted flavours or colours without any other permitted or prohibited items also could be said to be frozen ice produce coming within the definition and it will also come within the meaning of food if it is an article used as food or drink for human consumption. The term used is "frozen ice produce." Produce ordinarily means finished or semi-finished article made from raw materials or elements. If any finished produce is manufactured or made with frozen ice as the base it could be definitely be said to be a frozen ice produce. 11. The disputed sample as seen from Ext. C1 is a yellow coloured liquid which contained an artificial colouring matter identified as "tartrazine" colour. It also contained prohibited artificial sweeteners, saccharine and dulcin which are injurious to human health. There is no case that it is not an article used as food or drink for human consumption. By the inclusive definition of food any article which ordinarily enters into or used in the composition or preparation of human food and any flavouring matter or condiments are also food. The basic need is only that the article is one used as food or drink for human consumption. The definition itself makes it clear that it is subject to the condition that unless the context otherwise requires. 12. Babu's case 1981 Ker LT 75 : (1981 Cri LJ NOC 109) followed an earlier Single Bench decision referred to therein. The main reasonings in support of the decision are two fold. The definition itself makes it clear that it is subject to the condition that unless the context otherwise requires. 12. Babu's case 1981 Ker LT 75 : (1981 Cri LJ NOC 109) followed an earlier Single Bench decision referred to therein. The main reasonings in support of the decision are two fold. The first ground is that water is excluded from the definition of food and therefore, water being a chemical compound containing oxygen and hydrogen in a fixed proportion, in any of its states namely water, steam or ice, it must be deemed to have been excluded. The second reasoning is that under the definition of ice-candy in Appendix B, produce of ice could be treated as ice-candy only if at least any one of the permitted ingredients mentioned in the definition is added to ice. We have earlier stated that a preparation of frozen ice with any one of the permitted or prohibited ingredients itself could be frozen ice produce and even a preparation of frozen ice with only permitted flavours or colours without any other permitted or prohibited ingredients could be frozen ice produce coming within the definition of food provided it satisfies the definition of S. 2(v). In this case the sample is evidently frozen ice produce containing artificial colouring matter as well as prohibited artificial sweeteners. We have also stated that the sample is evidently an article used as food or drink for human consumption. If so even without going into the question whether water includes ice or steam the disputed sample could be held to be food. We do not think that it may be correct to say that frozen ice produce without any permitted ingredients and with only prohibited materials like artificial sweeteners will not satisfy the definition of ice-candy even if it is an article used as food or drink for human consumption. Such an interpretation will go against the object and purpose of the Legislation which is intended to eradicate the social menace of food adulteration affecting the life and health of citizens. If such an interpretation is allowed to exist any dishonest manufacturer, dealer or distributor could escape the penal provisions of the Prevention of Food Adulteration Act and Rules by preparing and selling frozen ice produced for human consumption by adding prohibited materials alone to frozen ice. If such an interpretation is allowed to exist any dishonest manufacturer, dealer or distributor could escape the penal provisions of the Prevention of Food Adulteration Act and Rules by preparing and selling frozen ice produced for human consumption by adding prohibited materials alone to frozen ice. We do not think that such a contingency was ever contemplated by the Legislation. It is only common knowledge that people especially children use ice candy freely as an item of food. That aspect is not disputed and there is no case for the respondent that ice candy was manufactured and exposed for sale in the freezer for any purpose other than being used as food or drink for human consumption. 13. Under the definition in S. 2(v) what is excluded is only water and not water in any of its state. Babu's case 1981 Ker LT 75 : (1981 Cri LJ NOC 109) itself quoted the Oxford Dictionary meaning of water as "colourless, transparent, tasteless, scentless compound of oxygen and hydrogen in liquid state. It has a freezing point and boiling point. When frozen it becomes ice. When boiled it becomes steam. Ice and steam are only conversions of water and not water as it is. Constituents may be the same. Steam, in order to be converted into water will have to be cooled and ice to be converted into water may have to be heated. Only if these processes are undergone steam or ice becomes water. The meaning of common words relating to common articles consumed by common people, available commonly and contained in a statute intended to protect the community generally must be gathered from the common sense understanding of the word. (See P. K. Tejani v. M. R. Dange, AIR 1974 SC 228 : (1974 Cri LJ 313). Common sense understanding of the word water does not include ice or steam. Ice and steam are not generally understood as water. If those states of water were also intended to be included, the Legislature could have very well used the term "water in any state or form". Chemical components or chemical ingredients alone is not the criterion to decide whether two items are one and the same and whether they are so understood in common parlance. If those states of water were also intended to be included, the Legislature could have very well used the term "water in any state or form". Chemical components or chemical ingredients alone is not the criterion to decide whether two items are one and the same and whether they are so understood in common parlance. The form and the user to which they are put are also relevant factors to be considered in deciding whether they are one and the same and whether they are so understood in common parlance. Ice is not generally considered as equivalent to water in state or use in spite of identity of the chemical components. So long as ice remains as ice it cannot be said to be water pure and simple. It cannot be put to all the uses to which water is put. Exclusion of water need not necessarily follow in all cases that all conversions of water are also excluded. As Item A.01.01 potable (drinkable) water impregnated with carbon dioxide under pressure is carbonated water which is an item of food article for which standards are fixed. The permitted ingredients mentioned therein or any of them is not necessary to make it carbonated water. Only thing is that the presence of those ingredients singly or in combination is not prohibited but permitted. Therefore simply because water is excluded, it may not be correct to say that ice which is a conversion of water in different state and form and can be of different use was also excluded from the definition of food. 14. Even conceding that frozen ice is water and as such excluded from the definition of food, it may not be correct to say that the sample involved in this case is a conversion of water. If the sample is to be considered as water in a different state or form namely frozen ice it must be capable of being reconverted into water in the process of heating. Here, the sample is yellow coloured liquid containing artificial colouring matter "tartrazine" colour as well as saccharine and dulcin. By reconversion it cannot become water. It will only be a yellow coloured liquid which may contain water, colouring materials as well as prohibited sweeteners. Here, the sample is yellow coloured liquid containing artificial colouring matter "tartrazine" colour as well as saccharine and dulcin. By reconversion it cannot become water. It will only be a yellow coloured liquid which may contain water, colouring materials as well as prohibited sweeteners. In State of Keraka v. Lakshmanan, 1973 Ker LT 257 : (1973 Cri LJ 1730) it was said : "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". 15. In this connection it is advantageous to quote the observations contained in P. K. Tejani's case AIR 1974 SC 228 : (1974 Cri LJ 313) wherein Krishna Iyer, J. spoke for the Bench in the following terms : "We are dealing with a commodity which is consumed by the ordinary men in houses, hotels, marriage parties and even routinely. In the field of legal interpretation, dictionary scholarship and precedent-based connotations cannot become a universal guide or semantic tyrant, oblivious of the social context, subject of legal legislation and object of the law. The meaning of common words relating to common articles consumed by the common people, available commonly and contained a statute intended to protect the community generally, must be gathered from the commonsense understanding of the word. The Act defines 'food' very widely as covering any article as food and every component which enters into it, and even flavouring matter and condiments. It is common place knowledge that the word "food" is a very general term and applies to all that is eaten by men for nourishment and takes in subsidiaries. Is supari eaten with relish with men for taste and nourishment ? It is. And so it is food. Without tarrying further on this unusual argument we hold that supari is food within the meaning of S. 2(v) of the Act." 16. From what we have discussed above and also from the principles laid down in the decision quoted above, it necessarily follows that the sample involved in this case is an item of food used for human consumption. Without tarrying further on this unusual argument we hold that supari is food within the meaning of S. 2(v) of the Act." 16. From what we have discussed above and also from the principles laid down in the decision quoted above, it necessarily follows that the sample involved in this case is an item of food used for human consumption. If the principles laid down in Babu's case, 1981 Ker LT 75 : (1981 Cri LJ NOC 109) are accepted, such preparations containing prohibited materials injurious to health could be manufactured and sold without offending the penal provisions of the Prevention of Food Adulteration Act and Rules. Any how that cannot be a contingency contemplated by the Legislation. We hold that Babu's case, 1981 Ker LT 75 : (1981 Cri LJ NOC 109) has not laid down the law correctly. From Ext. C1 it is evident that the sample manufactured and sold by the respondent was adulterated. He is therefore proved beyond doubt to have committed the offence for which he was prosecuted. We set aside the decision of the Magistrate to the contrary and find the respondent guilty of the said offences. 17. We heard the counsel on the question of sentence also. The only argument advanced was that under the proviso to S. 16(1) the respondent may be considered leniently in the matter of punishment. We do not think that this is a case in which the proviso to S. 16(1) is applicable. 18. In the result, the criminal appeal is allowed and the order of acquittal is set aside. The respondent is found guilty of having committed the offences punishable under S. 16(1)(a)(ii) for having contravened the provisions of R. 44(g) of the Prevention of Food Adulteration Rules along with S. 7(1) of the Prevention of Food Adulteration Act. He is convicted accordingly and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 1,000/- in default of payment of which to undergo simple imprisonment for a further term of two months more. Appeal allowed.