This revision petition under section 397 is for quashing the criminal proceeding registered as C. R. Case No. 1331 of 1982 pending before the learned Chief Judicial Magistrate, Sibsagar. The petitioner No. 1 is one of the partners of the partnership firm carrying on business under the name of G. K. Ice having its registered office at Sibsagar. It is stated that he is neither in-charge nor is responsible for conduct of the business as there are three other partners. Petitioner No. 2, the brother of the petitioner No, 1 and though he is not a partner, was present when the Food Inspector visited the ice factory and collected sample which has been described as ice candy. The seized ice candy was sent to the Public Analyst and according to report dated 31st July, 1982 of the Public Analyst vide Annexure HI to the petition it was found that saccharine was present. The relevant portion of the report is quoted below : "Physical - sample found in liquid state. Chemical...... Sugar...absent. Saccharine : Present." The Analyst was of the opinion that the sample was artificially sweetened with saccharine which is prohibited. Accordingly the offence report was submitted after obtaining necessary sanction and the criminal proceeding was registered. 2. ' Mr. J. P. Bhattacharjee, learned counsel for the petitioner has urged that the sample seized was not an article of food under the Prevention of Food Adulteration Act and the Rules framed thereunder and as such the impugned order of the learned Additional Chief Judicial Magistrate dated 15.12.82 is illegal and accordingly the entire proceeding has to be quashed. 3. It may be mentioned that the sample was sent to Director Central Food Laboratory and report dated 8.10.82 is available at Annexure IV. I quote below the relevant portion of the reports "Physical examination - Colourless liquid. Sugar-absent. Saccharine-Present. Coaltar colour - not found. Opinion:-The sample of ice candy is adulterated under section 2 (i a) (m). It also contravenes rule 44 (1) and 47". I quote below the relevant portion of the Act and the rules; "Section2 (v)-"food" means any article used as food or drink for human consumption other than drugs and water and include- a).................. (b)........................ (c)......................... 4. Item No. A-07.04 to Appendix B to the Rules framed under the Act relating to ice candy as it stood before the amendment of 1976 reads as follows? (b)........................ (c)......................... 4. Item No. A-07.04 to Appendix B to the Rules framed under the Act relating to ice candy as it stood before the amendment of 1976 reads as follows? "Ice- candy means the frozen ice produced containing sugar with or without addition of permitted colour or flavouring substances". After the said amendment of 1976 the item reads as follows : "Ice candy or ice lallies or edible ice, by whatever names it is sold, means the frozen ice produce which may contain the permitted flavours and colours, sugar, syrup, fruit, fruit juices, cocoas, citric acid, stabilizers or emulsifiers not exceeding 5%; It shall not contain any artificial sweetener." After the amendment of 1982, the said item runs as follows: 'Ice-candy means frozen ice produced which may contain fruits, fruit juices, cocoa, nuts, citric acid, permitted flavours and colours. It may also contain permitted stabilizers and/or emulsifiers -not exceeding O.5% by weight. It shall contain sugar not less than 10% by weight. It shall not contain any artificial sweetener." 5. As the articles were seized on 30.6.82 we are concerned with amended provision made in tie year 1982. 6. Mr. Bhattacharjee has, urged that present sample is water in frozen state with saccharine and as such it will not come under a food article and also under the above Item A. 07.04 at it did not contain any other articles mentioned in the said item. According to Mr. Bhattacharjee, from the definition of food as contained in section 2 (v), as water is not included it follows that water whether it is in frozen condition or boiling condition will also be excluded from the item of food under the Act. 7. On the other hand Mr. De, learned Public Prosecutor has urged that only water is not an article of food and not water in frozen condition i.e. ice and as such the present seized article will attract the Act and the Rules framed thereunder as it contained saccharine. In this connection Mr. 7. On the other hand Mr. De, learned Public Prosecutor has urged that only water is not an article of food and not water in frozen condition i.e. ice and as such the present seized article will attract the Act and the Rules framed thereunder as it contained saccharine. In this connection Mr. De had drawn the attention of this Court to Rule 47 of the Rules which inter alia provides that saccharine or any other artificial sweetener shall not be added to any article of food, except where the addition of such artificial sweetener is permitted in accordance with the standard laid down in Appendix B to the Rules and where any artificial sweetener is added to any food, the conta­iner of food shall be labeled with adhesive declaratory label which shall be in the form indicated in the Rules. 8. Mr. De, has drawn ray attention to the decision of the Apex Court in P. K. Tejari vs. M. R. Dange, AIR 1974 SC 228 wherein it was held that the Act defines 'food' very widely as covering any article used as food and every components which enters into it, and even flavouring matter and condiments. It was further held that it is common place knowledge that the word 'food' is very general term and applies to ail i, e. eaten by men for nurishment and takes in subsidiaries. Applying the above ratio it was held that 'supari' is food within the meaning of section 2 (v) of the Act. 9. There cannot be any dispute that the definition of food in the Act is very wide and it covers any article which is used as a food. But in the case in hand as ice candy has been defined in the above item in Appendix B to the Rules the question is whether the sample seized would come within the purview of the above definition of the item. 10. Mr. De has placed reliance in a decision of this Court in State of Assam vs, Snadsr Das Arera, 1986 Cr.LJ.341. In this case it was held that ice candy is an article of foon and as the sample in question contained artificial sweetener an offence was committed as it was in violation of Rule 47 of the Rules. 10. Mr. De has placed reliance in a decision of this Court in State of Assam vs, Snadsr Das Arera, 1986 Cr.LJ.341. In this case it was held that ice candy is an article of foon and as the sample in question contained artificial sweetener an offence was committed as it was in violation of Rule 47 of the Rules. From reading the above decision I do not find that the question involved in this case was considered in that case. So, in my opinion this decision is not relevant for the present purpose. 11. Mr. Bhattacharjee, learned counsel for the petitioner has placed reliance in a decision of the Kerala High Court in Bahu vs. Food Inspector, 1981 FAJ 322. That case was exactly similar to the case in hand. After considering section 2 (v) it was held that water is only of the states of a chemical compound containing oxygen and hydrogen in mixed proportion and that when the definition in the said section exclude water from sis purview, it must be taken that it excludes water from its purview, in other states of water also, including ice, which is only frozen wafer. It was further held after considering the definition of ice candy that ice in order to be regarded as ice candy must contain some other ingredients in addition of frozen water. According to the learned Court if a particular article consists 01 only water in solid form and nothing else as mentioned in Item A.07.04 of Appendix B, it cannot be regarded as an article, of food for the purpose of the Act and 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. While corning to the above conclusion the learned Court also considered an earlier decision of that Court and also the decision of Orissa High Court in Banabihari vs. Food Inspector, 1975 Cr.L.J. NOG 23. Incidentally it may be stated that in this case apart from ice, the sample contained saccharine and dulcin. But in the case in hand the sample did not contain dulcin. 12. Mr. De, learned Public Prosecutor has placed reliance in a deci­sion of the Division Bench of that High Court wherein the correctness of the above decision was considered. In this case, the above ratio laid down \vas not accepted. But in the case in hand the sample did not contain dulcin. 12. Mr. De, learned Public Prosecutor has placed reliance in a deci­sion of the Division Bench of that High Court wherein the correctness of the above decision was considered. In this case, the above ratio laid down \vas not accepted. It may be stated that in this case ice candy as defined prior to 1982 amendment was considered and not the subsequent amendment. It was held that even preparation of frozen ice with only permitted flavour or colour without any other permitted and prohibited material also can be said to be frozen ice produced coming within the definition and it will also come within the meaning of food if it is an article used as food or drinking for human consumption. From the facts I find that in that case seized article was yellow coloured liquid which contain an artificial colouring material identified as "tartrazina" colour, and in addition it contain prohibited artificial sweetener saccharine and dulcin. In the present case the seized article did not contain any colour. In absence of any colour which is also mentioned in the definition of ice candy I am of the opinion that facts of that case is different from the case in hand. It may be mentioned that in that case the Court did not consider the question whether water includes ice or steam as it was not necessary to decide this dispute. 13. Reading the definition of ice candy as contained in Item A.07.04 I am of the opinion that frozen ice itself will not come under the purview of the above definition. It must contain at least one of the ingredients mentioned in the said definition. I, therefore, find considerable force in the submission of Mr. Bhattacharjee, learned counsel for the petitioner. 14. Now only question is whether the present case comes within the mischief of Rule 47 of the Rules. After having a close look of the rule I find that artificial sweetener can be used if it is permitted in accordance with the standards laid down in Appendix B, where any such artificial sweetener is added the container of such food shall be labelled as mentioned in the said rule. 15. From the offence report it appears that violation of Rule 47 was not alleged. 15. From the offence report it appears that violation of Rule 47 was not alleged. That apart, the sample was seized from the premises of the ice factory. It is not the case of the prosecution that the sample was taken when it was kept for sale. The question of fixing the label as contemplated in Rule 47 arises only when any article is kept for sale. On these grounds I do not find any violation of the above Rule 47. 16. For the reasons stated above I find merit in the present petition and accordingly I quashed the proceeding registered as C.R.Case No.1331 of 1982 pending before the learned Additional Chief Judicial Magistrate, Sibsagar. The petitioners are discharged from the liability of bail bond.