was impossible to 'lttain the standard of purity prescribed by paragraph A.11.02.08 of Appendix B of the Pervention of Food Adulteration Rules, 1955, as ice cream was but a ·preparation of milk and the standard of purity prescribed for buffalo milk was but a minimum of 5% milk fat. The learned Magistrate was, therefore, of the view that Rule 5 read with paragraph A.11.02.08 of Appendix B was impossible of compliance and, therefore, bad in law. On ·appeal by the State, a learned Single Judge of the High Court of Borubay dismissed the appeal in limine The State bas preferred an appeal to this Court under Art. 136 of the Constitution. We do not have .!he slightest hesitation in allowing the appea); We are unable to appreciate why the circumstance that the standard of milk fat for buffalo milk is 5% should render it impossible for ice cream to contain a minimum per centage of !0% milk fat. There are several ways by which the higher percentage of milk fat in ice cream be attained. The most elementary method is to heat the milk sufficiently to raduce the percentage of water and increase the percentage of milk fat. Another obvious method is to add cream containing a high percentage of milk fat separately to the milk before making ice cream out of it. We do not have to advise caterers and restaurateurs about how ice cream containing the minimum prescribed percentage of milk fat should be prepared. Section 2 (ia) (!) of the Prev.ntion of Food Adulteration Act, 1954 provides that an article of food shall be deemed to be adultarated if.the quality of purity of the article of food falls below the prescribed standard, which renders it injurious to health. Section 2(ia) (m) provides that an article of food shall be deemed to be adulterated if the quality or purity of the article falls below the prescribed standard, but which' does not render it injurious to health. Jn the case before us, there is nothing to show that the low percentage of milk fat renders the ice cream injurious to health. Rule 5 of the Prevention of Food Aduleration Rules, 1955 provides that standard of quality of the various articles of food specified in Appendix B to these rules are to be as defined in that Appendix. Paragraph A. 11. 02. 08 of Appendix B prescribed. a minimum standard of 10% milk fat in. the case of ice cream, kulli and chocolate ice cream. There cannot be the least doubt that the ice cream sold by the first "respondent was adulterated within the meaning of s. 2 (la) (m) of the Prevention of food Adulteration Act, ' 1954. The first and the fourth respondents are, therefore, liable to be convicted under s. 16 (!) (a) (ii) of the Food Adulteration Act, 1954. So far as respondents 2 and 3 are concerned, there is nothing
