Delhi District Court
M/S Prabhujee Dairy Food Processors ... vs Sh. Suniti Kumar Gupta on 1 November, 2019
IN THE COURT OF SH. YASHWANT KUMAR
DISTRICT & SESSIONS JUDGE/FSAT, NEW DELHI
In the matter of :
FSAT No. 32/16 (Old FSAT No.18/15)
(CNR No. : DLND010018442015)
1. M/s Prabhujee Dairy Food Processors Pvt. Ltd.
Village Manoharpur NH8, Delhi Road
Tehsil Shahpur, Distt. Jaipur, Rajasthan
2. Sh. Prince Khullar
(Director and personincharge of
M/s Prabhujee Dairy Food Processors Pvt. Ltd.)
Village Manoharpur NH8, Delhi Road
Tehsil Shahpur, Distt. Jaipur, Rajasthan
R/o B7/6263, Sector 4
Rohini, Delhi110 085.
.....Appellants
Vs
Sh. Suniti Kumar Gupta,
Food Safety Officer
Department of Food Safety,
8th Floor, Mayur Bhawan, Connaught Place
New Delhi110001.
..... Respondent
APPEAL AGAINST THE ORDER DATED
16.09.2015 OF LD. ADJUDICATING OFFICER
/ADDITIONAL DISTRICT MAGISTRATE
(SOUTH), SAKET, NEW DELHI.
Date of filing of appeal : 05.10.2015
Date of arguments : 25.10.2019
Date of judgment : 01.11.2019
FSAT No. 32/2016 Page No. 1 of 10
M/s Prabhuji Dairy & Ors. vs. FSO
J U D G M E N T :
1. Vide this judgment, I shall dispose of the present appeal, challenging the order dated 16.09.2015 ("the impugned order" in short) of Ld. Adjudicating Officer/Additional District Magistrate (South), Saket, New Delhi ("ADM" in short), directing the appellant No.1herein to pay a penalty of Rs.30,000/ under Section 51 of The Food Safety and Standards Act, 2006 ("FSS Act" in short) for selling substandard milk, in contravention of Section 26(2)(ii) of FSS Act read with Section 3(1)(zx) of FSS Act.
2. Briefly stating, the facts as per appeal are that on 21.12.2011, a sample of "Pasteurized Toned Milk" was lifted by the Food Safety Officer (in short FSO) from the premises of Sh. Abhishek Pathak, FBO/Manager of Amul Kiosk/Parlour, Kamal Complex, New JNU Campus, New Delhi110 067, for 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.13.12.2011 as the milk solid not fat (SNF) was less than the prescribed minimum limit of 8.50%. After receiving the report of Food Analyst, Delhi, the appellants herein 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. 10.05.2012 declared the sample to be substandard as defined under Section 3(1)(zx) of FSS Act, 2006 as it does not conform to the standards laid down for Toned FSAT No. 32/2016 Page No. 2 of 10 M/s Prabhuji Dairy & Ors. vs. FSO Milk under the provisions of Food Safety and Standards (Food Products Standards and Food Additives) Regulation 2011 with the observations that "Milk solids fat content falls below the minimum standard limit". Consequently, a complaint was filed against respondentstherein including the appellants herein by the FSO before the Adjudicating Officer. After pleadings and enquiry, the Ld. ADM passed the impugned order dated 16.09.2015 imposing a penalty of Rs.30,000/ on the appellant no.1 herein.
3. The appellant have challenged the impugned order inter alia on the main grounds among others that the Ld. ADM failed to appreciate that minor deficiency of 0.3% in the SNF could be due to analytical error. The Gerber Method adopted by the Food Analyst as well as by the Referral Food Laboratory is not a proper method as has been held by the Hon'ble Supreme Court in Corp. of the City, Nagpur vs. Neetam Manikrao Kature & Others 1998 SCC (Cri) 564. The variations between the analytical values of the Food Analyst and the RFL indicated that the representative sample was not taken and in this regard, appellant in the present appeal relied upon the judgment in the case of M/s Raja Ram Seth and Sons & Anr. Vs. Delhi Admn. 2012(2) FAC 523.
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.
FSAT No. 32/2016 Page No. 3 of 10M/s Prabhuji Dairy & Ors. vs. FSO
6. The Ld. Counsel for the appellants argued that the Gerber Method adopted in this case by Food Analyst as well as by the Food Referral Laboratory 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 (supra) and the said judgment still holds good being not overruled by the Hon'ble Supreme Court. Hence, both the aforesaid reports are erroneous and cannot be relied upon. The deficiency in the SNF could be due to analytical error. Ld. Counsel for the appellants, in support of his arguments, has further relied upon the judgments in the cases of G.K. Upadhyay Vs. Kanubhai Raimalbhai Rabari & Anr. 2009 (1) FAC 499 (Gujarat), Keshubhai Ranambhai Tukadiya Vs. State of Gujarat 2009(1) FAC 565.
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 FSAT No. 32/2016 Page No. 4 of 10 M/s Prabhuji Dairy & Ors. vs. FSO 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 Geerber 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.
8. Perusal of record reveals that the appellants have challenged the impugned order mainly on the ground that the "Gerber Method", which was adopted by the Food Analyst as well as Food Referral Laboratory 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). The Food Analyst vide his report dated 30.12.2011, opined the food article to be substandard because milk solids not fat is less than the prescribed minimum limit 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 certificate of Referral Food Laboratory, Mysore dated 10.05.2012 reported that the sample food article contained milk solids not fat % by weight as 8.2 i.e., below the prescribed standard as per Regulation No.2.1.1. It found the food sample to be sub standard, in the light of Section 3(1)(zx) FSS Act as it did not conform to FSAT No. 32/2016 Page No. 5 of 10 M/s Prabhuji Dairy & Ors. vs. FSO the standard laid down for Toned Milk under the provisions of FSS(FPS & FA) Regulations, 2011.
9. The main contention of appellants are that "Gerber Method", adopted by the Food Analyst as well as by the Food Referral Laboratory in analyzing the sample, is not a reliable method as has been held by Hon'ble Supreme Court in the case of Corporation of the City of Nagpur (Supra). The deficiency in the SNF could be due to the analytical error and therefore, appellant no.1 herein should not have been imposed penalty.
10. In the present case, after receiving the said report of the Food Analyst, Delhi, an appeal was preferred before the Designated Officer, Saket, New Delhi and the same was allowed. The sample commodity was then sent to the Referral Food Laboratory, Mysore for reanalysis. The 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.
11. Proviso to Section 13 (5) of The Prevention of Food Adulteration Act, 1954 ("PFA Act" in short) i.e. the old Act also contained 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: FSAT No. 32/2016 Page No. 6 of 10 M/s Prabhuji Dairy & Ors. vs. FSO
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."
12. 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 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 Geerber Method for determination of fat content in milk. As such, the Government labs including food safety lab was following the Gerber Method. No such plea of Gerber Method was raised before the Ld. ADM, therefore, it was found by FSAT No. 32/2016 Page No. 7 of 10 M/s Prabhuji Dairy & Ors. vs. FSO 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.
13. 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 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.
FSAT No. 32/2016 Page No. 8 of 10M/s Prabhuji Dairy & Ors. vs. FSO 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 Corporation of City of Nagpur (supra) relied upon by the Ld. Counsel for the appellants is distinguishable from the facts and circumstances of the present case.
FSAT No. 32/2016 Page No. 9 of 10M/s Prabhuji Dairy & Ors. vs. FSO
14. In view of the above facts and circumstances, arguments on behalf of the parties and the material available on reocrd as well as the judgmetns relied upon by the Ld. Counsel for the appellants as well as the Ld. Chief PP for the State, I am of the considered opinion that the sample food article did not conform to the specified standard as laid down in Section 26(2)(ii) of the FSS Act read with Section 3(1) (zx) of the FSS Act. 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 FSS Act prescribes a maximum penalty of Rs. Five Lakhs. However, the Ld.ADM imposed a meager penalty of only Rs.Thirty thousand upon the appellant No.1herein. Thus, the appellants have failed to demonstrate any justified reason to interfere with the impugned order dt.16.09.2015 of the Ld. ADM. Accordingly, this appeal is devoid of any merits and the same is dismissed. TCR be sent back along with copy of this judgment. Appeal file be consigned to record room.
Digitally signed by YASHWANT YASHWANT KUMAR
KUMAR Date: 2019.11.01
19:25:05 +0530
Announced in open Court (YASHWANT KUMAR)
on 01st day of November 2019 District & Sessions Judge/FSAT
Patiala House Courts, New Delhi
FSAT No. 32/2016 Page No. 10 of 10
M/s Prabhuji Dairy & Ors. vs. FSO