Delhi District Court
Sh. Arvind Kumar Singh vs State on 14 November, 2019
IN THE COURT OF SH. YASHWANT KUMAR
DISTRICT & SESSIONS JUDGE/FSAT, NEW DELHI
In the matter of :
FSAT No. 12/18 (CNR No. DLND010119062018)
1. Sh. Arvind Kumar Singh
S/o Sh. B.B. Singh
M/s Goga Food Limited
Delhi Saharanpur Road, Khekra
District - Bhagpat (UP) - 201 101
R/o H.No. 1834, Janta Flats, G.T.B. Enclave
Delhi110 093. (Nominee of Manufacturing Company)
2. M/s Goga Food Limited
Delhi Saharanpur Road, Khekra
District - Bhagpat (UP) - 201 101
Through Sh. Arvind Kumar Singh
Authorized Representative (Manufacturing Company)
..... Appellants
Versus
State, through Sh. Rajendra Kumar Bhaskar
Food Safety Officer
Department of Food Safety
Govt. of NCT of Delhi
8th Floor, Mayur Bhawan, Connaught Place
New Delhi110001.
..... Respondent
APPEAL AGAINST THE ORDER DATED
07.09.2018 OF LD. ADJUDICATING OFFICER /
ADDITIONAL DISTRICT MAGISTRATE
(NORTH EAST), DELHI.
FSAT No. 12/18 Page No. 1 of 13
Arvind Kumar Singh and Another. vs. State through, FSO
Date of filing of appeal : 05.10.2018
Date of arguments : 25.10.2019
Date of judgment : 14.11.2019
J U D G M E N T :
1. Vide this judgment, I shall dispose of the present appeal, challenging the order dated 07.09.2018 ("the impugned order" in short) of Ld. Adjudicating Officer/Additional District Magistrate (North East), Nand Nagri, Delhi ("ADM" in short), whereby he imposed penalty of Rs.5,00,000/ (Rupees Five lacs only) each under Section 51 of the Food Safety and Standards Act, 2006 ("FSS Act" in short) and Rs.1,00,000/ (Rupees One lac only) each under Section 54 of FSS Act upon the appellant Nos.1&2 respectively, for selling substandard milk in contravention to Section 26(1) & 26(2)(ii) of FSS Act read with Section 3(1) (zx) of FSS Act, 2006, Regulation 1.2.6 read with Regulation No. 2.1.1:1 of Food Safety and Standards (Food Products Standard & Food Additives), Regulations, 2011 {FSS(FPS & FA) Regulations in short} and Section 3(1)
(i) read with Regulation 2.1.(10) of the Food Safety and Standards (Prohibition and Restriction on Sales) Regulations, 2011.
2. Briefly stating, the facts as per appeal are that on 02.02.2016 a sample of "Amul Pasteurized Toned Milk" was lifted by the Food Safety Officer (in short FSO) from Sh. Chandra Pratap, FBOcumDriver of vehicle No. DL1LG3942 for its analysis under the provisions of FSS Act/Regulations. On analysis by the Food Analyst, Delhi, the said sample was declared to be substandard vide report dt.05.02.2016 as the milk solid FSAT No. 12/18 Page No. 2 of 13 Arvind Kumar Singh and Another. vs. State through, FSO not fat (SNF) was found to be 7.97% against the prescribed minimum standard of 8.5%. However, in the said report, Milk Fat was found to be 4.0% against the minimum prescribed of 3.0% and test for sugar/ glucose was found to be negative. After receiving the said report of Food Analyst, Delhi, the manufacturer / packer through its nominee filed an appeal before the concerned Designated Officer (DO). The said appeal was allowed and one counterpart of the sampled commodity was forwarded to Referral Food Laboratory, Mysore (RFL) for reanalysis. The RFL vide its report dt. 04.05.2016 declared the sample to be substandard as defined under Section 3(1) (zx) of FSS Act, 2006 with the observations that "a) Milk Solid Not Fat (SNF) contents falls below the minimum standard limit; and b) Test for cane sugar is positive". However, the milk solid not fat was found to be 6.8% against the minimum prescribed limit of 8.50% by the RFL, Mysore and milk fat was found to be 3.6% against the minimum prescribed limit of 3.0%. Consequently, a complaint was filed against six respondentstherein including the appellantsherein by the FSO before the Adjudicating Officer. After pleadings and enquiry, the Ld. ADM passed the impugned order dated 07.09.2018 imposing a penalty of Rs.6,00,000/ upon appellant No.1 being the nominee of manufacturing company i.e. appellant No.2 herein and a penalty of Rs.6,00,000/ upon the appellant No.2 herein being the manufacturing company.
3. The appellants have challenged the impugned order inter alia on the grounds among others that the ADM has failed to appreciate the fact that the Referral Food Laboratory, Mysore tested the FAT contents by "Gerber method (IS.1224, 1977)". The Gerber Method adopted by Referral FSAT No. 12/18 Page No. 3 of 13 Arvind Kumar Singh and Another. vs. State through, FSO Food Laboratory is not a reliable method for testing milk fat in milk as has been held by the Hon'ble Supreme Court in Corporation of the City, Nagpur vs. Neetam Manikrao Kature & Others 1998 SCC (Crl.) 564 (SC) and also by the Hon'ble High Court of Gujarat in case titled G.K. Upadhyay Vs. Kanubhai Raimalbhai Rabri 2009 (1) FAC 499 (Gujarat). The report of Referral Food Laboratory, Mysore could not have been relied upon as appellate laboratory adopted an erroneous method for testing the sampled commodity in case of fat and SNF. The report of RFL, Mysore could not have been relied upon by the Ld. ADM while passing the impugned order as it was based upon "Gerber Method". Both the aforesaid reports were contradictory to each other, as in the Food Analyst report dt. 05.02.2016, the Milk Fat was found to be 4.0% and SNF was found to be 7.97% as against Referral Laboratory report dt. 04.05.2016 wherein milk fat contents was found to be 3.6% and SNF was found to be 6.8% and further the cane sugar was found to be positive, which was found to be absent in analysis report of Food Analyst, Delhi. The Ld. ADM failed to appreciate that the sampling procedure adopted by the FSO was faulty and the counterparts so prepared by the respondent / FSO were also not representative in nature, which resulted in unfair analysis and complete variance/diversions in both the said reports. The Ld. ADM acted against the principle of natural justice while passing the impugned order as the Ld. ADM without any cogent reasoning dismissed the application for crossexamination of concerned FSO and Food Analyst, Delhi holding that he was of the opinion that cross examination will not serve any purpose for just disposal of the case / complaint. No independent public witness was associated by the FSO FSAT No. 12/18 Page No. 4 of 13 Arvind Kumar Singh and Another. vs. State through, FSO during the sampling proceedings.
4. The Ld. Chief PP for the State has not filed reply to the appeal, however, he has opposed the appeal.
5. I have heard Ld. Counsel for the appellants and Ld. Chief Public Prosecutor for the State and have perused the written synopsis filed on behalf of the appellants and also the record carefully.
6. The Ld. Counsel for the appellants argued that there was variation in the two Experts Reports with regard to the samples sent that too beyond the acceptable range which renders the samples unrepresentative and as such the appellants may be given the benefit of doubt. The Gerber Method adopted in this case by RFL is not reliable as per the judgment of the Hon'ble Supreme Court in the case of Corporation of the City of Nagpur Vs. Neetam Manikrao Kature & Ors. 1988 SCC (Crl) 564 and the said judgment still holds good being not overruled by the Hon'ble Supreme Court. Ld. Counsel for the appellants further argued that FSO while lifting the sample followed the faulty procedure and there is no evidence that container / utensils were washed / cleaned at the spot before sampling on the spot. Ld. Counsel for the appellants, in support of his arguments, has relied upon the judgments in the cases of Corporation of the City of Nagpur (supra); G.K. Upadhyay (supra); State of Himachal Pradesh Vs. Gulzari Lal & Ors. 2014 (1) FAC 141 (HP); State of Gujarat vs. Om Prakash Dhanshriram Pandit 2015(1) FAC 313 (Gujarat); Food Inspector / Food Safety Officer vs. Santosh Sharma 2014(1) FAC 296 (Delhi) and State vs Abdul Jameel 2014(2) FAC 166 (Delhi).
FSAT No. 12/18 Page No. 5 of 13Arvind Kumar Singh and Another. vs. State through, FSO
7. Ld. Chief Public Prosecutor argued that the standards which have been laid down by the legislature are to be followed, which was not so in the case of the appellants herein. The parameters and standards were not followed by the appellants for selling the milk. The substandard milk is to be treated as an adulterated article, even if it has not caused injuries to health. The appellants did not comply with the standards of rules / regulations of Food Safety and Standard Act. The Ld. Chief PP also argued that the Gerber Method used for analysing in the food article i.e. Milk Fat is a DGHS manual method which was printed in the year 1975. It was also argued that the said method is a part of Indian Standard IS12241958 adopted by ISI and further reaffirmed by ISI in the year 1977 onwards. It was further argued that DGHS Manual 2005 at serial No. 1.7.1 and Indian Standard IS:124(Part)(I)1977 also shows that the Gerber Method is certified method for determination of fat in milk. FSSAI, Ministry of Health and Family Welfare in its latest draft manual of method analyses of foods - milk and milk products, published in 2012 has also included the Gerber Method for determination of fat content in milk. As such, the Government labs including food safety lab was following the Gerber Method. Therefore, the impugned order has been rightly passed by the Ld.ADM on the basis of the reports and evidence on record. The Ld. Chief PP for the State, in support of his arguments relied upon the judgment in the case of Raj Kumar versus The State of Uttar Pradesh in Criminal Appeal No. 1541 of 2019 decided on 04.10.2019 by the Hon'ble Supreme Court of India.
FSAT No. 12/18 Page No. 6 of 13Arvind Kumar Singh and Another. vs. State through, FSO
8. Perusal of record reveals that the appellants have challenged the impugned order mainly on the grounds that there were variations in both the aforesaid reports and that no penalty should have been imposed on the appellants in view of contradictory reports. Another ground for challenging the impugned order is that proper procedure as per law was not followed or that the "Gerber Method", which was adopted by the RFL in analyzing the sample is not reliable method as per the judgment of the Hon'ble Supreme Court in the case of Corporation of the City of Nagpur (Supra). It is a matter of record that initially, when one counterpart of the sample was sent to Food Analyst for analysis, the appellants did not request for sending the sample to NABL Accredited Laboratory. The Food Analyst vide his report dated 05.02.2016, opined the sample as substandard because milk solids not fat is less than the prescribed minimum limits of 8.5%. On receipt of the Food Analyst's report from the Designated Officer, the appellants requested for sending the sample to Referral Food Laboratory. The Director of Referral Food Laboratory, Mysore vide his report dated 04.05.2016, opined that the sample is substandard as defined under Section 3(1) (zx) of FSS Act as it did not conform to the standards laid down for Toned Milk under the provisions of FSS(FPS & FA) Regulations, 2011 that milk solids not fat content falls below the minimum standard limit and test for cane sugar is positive.
9. The appellants have contended that the appellants should not have been imposed penalty in view of variations in the reports of Food Analyst and Referral Food Laboratory. On the other hand, Ld. Chief Public Prosecutor stated that the Report of Referral Food Laboratory is final and FSAT No. 12/18 Page No. 7 of 13 Arvind Kumar Singh and Another. vs. State through, FSO conclusive. There is no occasion for any comparison between the two reports and plea of variations in findings in two reports cannot be considered.
10. Rule 2.4.6 of FSSR reads as under:
"2.4.6 Appeal to the Designated Officer
1. When an appeal as provided under subsection (4) of section 46 is preferred to the Designated Officer by the Food Business Operator against the report of the Food Analyst, the Designated Officer, shall if he so decides, within thirty days from the receipt of such appeal after considering the material placed before him and after giving an opportunity to Food Business Operator to be heard shall forward one part of the sample to the referral lab. Such appeal shall be in Form VIII which shall be filed within 30 days from the date of the receipt of the copy of the analysis report from the Designated Officer. Report of the referral laboratory shall be final in this regard.
2..... "
11. In the present case, the appellants after receiving the said report of the Food Analyst, Delhi, preferred an appeal before the Designated Officer, North East, Delhi and the same was allowed. The sample commodity was then sent to the Referral Food Laboratory, Mysore for reanalysis. The said report of RFL received, therefore, in view of the provision as contained in Rule 2.4.6(1) FSSR, the above Certificate/report of Referral Food Laboratory shall be final.
12. Proviso to Section 13(5) of The Prevention of Food Adulteration Act, 1954 ("PFA Act" in short) i.e. the old Act also contained FSAT No. 12/18 Page No. 8 of 13 Arvind Kumar Singh and Another. vs. State through, FSO the similar provision laying down that Certificate of Director, Central Food Laboratory shall be final and conclusive evidence of the facts stated therein. Section 13(3) of the said Act also clarified that the certificate issued by the Director, Central Food Laboratory shall supersede the report given by the Public Analyst. In this context, the reliance can be had upon the judgment reported in the case of Subhash Chander v. State(Delhi Administration) Delhi, 1983 (4) DRJ 100, where it was observed that:
7.It has repeatedly been held by the supreme court that the certificate of the Director supersedes the report of the public analyst and is to be treated as conclusive evidence of its contents. The Director is a greater expert and therefore the statute says that his certificate shall be accepted by the court as conclusive evidence. For all purposes the report of the public analyst is replaced by the certificate of the Director.....Superseded is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. The Director's certificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other purpose it is superseded."
13. During arguments, the Ld. Chief PP for the State argued that the Gerber Method used for analysing in the food article i.e. Milk Fat is a DGHS manual method which was printed in the year 1975 and it was also clarified that the method is a part of Indian Standard IS12241958 adopted by ISI and further reaffirmed by ISI in the year 1977 onwards. It was also argued that DGHS Manual 2005 at serial No. 1.7.1 and Indian Standard FSAT No. 12/18 Page No. 9 of 13 Arvind Kumar Singh and Another. vs. State through, FSO IS:124(Part)(I)1977 also shows that the Gerber Method is certified method for determination of fat in milk. FSSAI, Ministry of Health and Family Welfare in its latest draft manual of method analyses of foods - milk and milk products, published in 2012 has also included the Gerber Method for determination of fat content in milk. As such, the Government labs including food safety lab was following the Gerber Method. It was found by the Ld. ADM on the basis of the report, relevant provisions of the FSS Act and Regulations that the sample was subsandard and violated the aforesaid provisions of the FSS Act and Regulations.
14. In the case of Keshubhai Ranbhai Tukadiya (supra), the Hon'ble High Court of Gujarat referred the case of Corporation of the City of Nagpur (supra) in which it was held that Gurber's method of analysis of the quality of food substance was not of assured quality and accuracy and such method was not certified by the Indian Standard Institute. However, in the case of Raj Kumar vs. State of Uttar Pradesh (Supra), relied upon by the Ld. Chief PP for the State / respondent, it was observed and held by the Hon'ble Bench of the Hon'ble Mr. Justice Deepak Gupta and Hon'ble Mr. Justice Surya Kant of the Hon'ble Supreme Court that on 30.10.1995 a sample of milk was collected from the appellant by the Food Inspector. The same was sent to the Public Analyst who received the same on 02.11.1995. The sample was analyzed and Milk Fat (MF for short) was found to be Signature Not Verified Digitally signed by MEENAKSHI KOHLI Date: 2019.10.04 4.6% and Milk Solid NonFat (MSNF for short) was 7.7%, against 15:35:09 IST Reason: the prescribed standard of 8.5%. The appellant was prosecuted after obtaining consent of the Chief Medical FSAT No. 12/18 Page No. 10 of 13 Arvind Kumar Singh and Another. vs. State through, FSO Officer, and was convicted by trial court, which conviction was upheld by the Sessions Court and the High Court. Ld. counsel for the appellant in the aforesaid case, raised number of issues. The first was that there was delay in analysing the sample and, therefore, marginal shortfall in MSNF should be overlooked, since it would have caused by the delay in testing the sample. The said contention was not accepted because there was no material on record to support this assertion. The appellant did not even deem it fit to summon the Public Analyst for crossexamination for this purpose. The Hon'ble Supreme Court further observed that in similar circumstances where the delay in testing the samples was of 44 days, the Hon'ble Supreme Court also considered in Shambhu Dayal vs. State of U.P. 1 held that since the sample had been preserved by using formalin, as in the present case, the accused cannot get any benefit. The Hon'ble Supreme Court further observed that the Act does not provide for exemption of marginal or border line variations of the standard from the operation of the Act. In such circumstances to condone such variations on the ground that they are negligible is virtually to alter the standard itself fixed under the Act. The standards of qualities of the articles have been fixed by the Government under the provisions of the Act after due deliberation and after consulting a committee of competent men. It is for them to give due allowance for probable errors before fixing a standard. They may have done it also. There is no reason to assume otherwise. Therefore, the conclusion is that for an article of food when a standard has been fixed under the Act it has to be observed in every detail. Therefore, the said criminal appeal was dismissed by the Hon'ble Supreme Court. Thus, the judgment in the case of FSAT No. 12/18 Page No. 11 of 13 Arvind Kumar Singh and Another. vs. State through, FSO Corporation of City of Nagpur (supra) relied upon by the Ld. Counsel for the appellant is distinguishable from the facts and circumstances of the present case.
15. It is evident as discussed above that the report of the Director, Referal Food Laboratory, Mysore is considered a greater expert report, the Certificate issued by him is also considered as final / concuslive. The Ld. ADM, considered the contentions of the appellant and also the Gerber Method as well as the judgment in the case of Corporation of City Nagpur (supra) and thereafter it was found by him on the basis of the report, relevant provisions of the FSS Act and Regulations that the sample was substandard and violated the aforesaid provisions of the FSS Act and Regulations.
16. In view of the above facts and circumstances, arguments on behalf of the parties and the material available on reocrd as well as the judgments relied upon by the Ld. Counsel for the appellant as well as the Ld. Chief PP for the State, I am of the considered opinion that the sample food article i.e. "Pasteurized Toned Milk" did not conform to the specified standard as laid down in Regulation 1.2.6 read with Regulation 2.1.1:1 FSS (FPS & FA) Regulations. Nonconforming to the specified standard rendered the sample i.e. Pasteurized Toned Milk as substandard in terms of Section 3(1)(zx) of the FSS Act. Section 51 and 54 of FSS Act prescribe a maximum penalty of Rs.5,00,000/ (Rupees Five Lacs only) and maximum Rs.1,00,000/ (Rupees One lac only) respectively. This was the second offence committed by the appellants, which has become more serious and the same is harmful towards the persons having age group between infants FSAT No. 12/18 Page No. 12 of 13 Arvind Kumar Singh and Another. vs. State through, FSO to the old aged consuming such a substandard edible/consumable product. Therefore, the Ld.ADM rightly imposed the maximum penalty of Rs.5,00,000/ (Rupees Five lacs only) each u/s 51 of FSS Act and maximum penalty of Rs.1,00,000/ (Rupees One lac only) each u/s 54 of FSS Act upon the appellants. The judgments relied upon by the Ld. Counsel for the appellants are distinguishable from the facts and circumstances of the present case. Thus, the appellants have failed to demonstrate any justified reason to interfere with the impugned order dt.07.09.2018 of the Ld. ADM. Accordingly, this appeal is devoid of any merits and the same is dismissed. Copy of this Judgment be sent to the Ld. ADM. Appeal file be consigned to record room. Digitally signed by YASHWANT YASHWANT KUMAR KUMAR Date: 2019.11.14 07:40:47 +0530 Announced in open Court (YASHWANT KUMAR) on 14th day of November 2019 District & Sessions Judge/FSAT Patiala House Courts, New Delhi FSAT No. 12/18 Page No. 13 of 13 Arvind Kumar Singh and Another. vs. State through, FSO