Delhi District Court
Sh. Arvind Kumar Singh vs State on 25 November, 2019
IN THE COURT OF SH. YASHWANT KUMAR
DISTRICT & SESSIONS JUDGE/FSAT, NEW DELHI
In the matter of :
FSAT No. 21/18 (CNR No. DLND010132652018)
1. Sh. Arvind Kumar Singh
M/s Goga Food Limited
Delhi Saharanpur Road, Khekra
District - Bhagpat (UP)201 101
(Nominee of Manufacturing Company)
2. M/s Goga Food Limited
Having Registered Office at :
Jain Farm House, Radha Swami Satsang Beas
Near Chaudhary Bharat Singh Farm House
P.O. Biharipur, Sonia Vihar, Delhi110094
Through Sh. Arvind Kumar Singh
Authorized representative
(Manufacturing Company)
..... Appellants
Versus
State, through Sh. Hukum Singh
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
27.09.2018 OF LD. ADJUDICATING OFFICER /
ADDITIONAL DISTRICT MAGISTRATE
(NORTH EAST), NAND NAGARI, DELHI.
FSAT No. 21/18 Page No. 1 of 8
Sh. Arvind Kumar Singh & Anr. vs. State through, FSO
Date of filing of appeal : 01.11.2018
Date of arguments : 25.11.2019
Date of judgment : 25.11.2019
J U D G M E N T :
1. Vide this judgment, I shall dispose of the present appeal, challenging the order dated 27.09.2018 ("the impugned order" in short) of Ld. Adjudicating Officer/Additional District Magistrate (NorthEast), Nand Nagri, Delhi ("ADM" in short), whereby he imposed penalty of Rs.1.00 lac each upon the appellants under Section 51 of the Food Safety and Standards Act, 2006 ("FSS Act" in short), 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 1.1.1.10 of Food Safety and Standards (Food Products Standard & Food Additives), Regulations, 2011 {FSS(FPS & FA) Regulations in short}.
2. Briefly stating, the facts as per appeal are that on 04.02.2016, a sample of "Amul Pasteurized Full Cream Milk" was lifted by the Food Safety Officer (in short FSO) from Sh. Sanjeev Sharma, FBOcumDriver of vehicle bearing registration No. DL1M3940 for its analysis under the provisions of FSS Act and Rules made thereunder. 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 not fat (SNF) was found to be 8.52% against the prescribed minimum standard of 9.0%. However, in the said report, Milk Fat was found to be 6.30% against the minimum prescribed of 6.0%. Consequently, a complaint was filed against the seven respondents therein FSAT No. 21/18 Page No. 2 of 8 Sh. Arvind Kumar Singh & Anr. vs. State through, FSO including the appellantsherein by the FSO before the Ld. ADM. Thereafter, appellants filed their written reply / objection / submissions before the Ld. ADM. An application for crossexamination of concerned FSO and the Food Analyst was also filed by them, however, the said application was dismissed by the Ld. ADM. After pleadings and enquiry, the Ld. ADM passed the impugned order dated 27.09.2018 imposing a penalty of Rs.1.00 lac each upon the appellantsherein.
3. The appellants have challenged the impugned order inter alia on the grounds among others that the Ld. ADM acted against the principle of natural justice as he has dismissed the application for crossexamination of the concerned FSO and Food Analyst without any cogent reason. The Ld. ADM failed to appreciate that the appellants would have been given benefit of marginal error / analytical error as there was marginal deficiency being less than 1%. The laboratory of the Food Analyst was neither a recognized laboratory under Section 3(p) of FSS Act nor an accredited laboratory as per Section 43 of FSS Act, hence, the said report could have not been relied upon by the Ld. ADM. The proper sampling procedure was not adopted or followed by the FSO as evident from the documents prepared at the spot and the analysis report of the sampled commodity. No independent public witness was associated by the 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 FSAT No. 21/18 Page No. 3 of 8 Sh. Arvind Kumar Singh & Anr. vs. State through, FSO on behalf of the appellants and also the record carefully.
6. Ld. Counsel for the appellants has argued that there was deficiency of less than 1% and therefore, the appellants should have been given the benefit of marginal error / analytical error. The report of Food Analyst is not proved as he was never examined and hence, it cannot be read in evidence. The Ld. ADM did not consider the application for cross examination of concerned FSO and the Food Analyst as the same was dismissed without giving any cogent reason. The respondent has not placed on record any document to prove or show that the Food Analyst Laboratory was accredited by NABL and recognized under Section 3(p) and 43 of the FSS Act. Ld. Counsel for the appellantsherein further argued that FSO while lifting the sample followed the faulty procedure as no heat treatment was given 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 M/s Cargil India Pvt. Ltd. vs State of Uttarakhand & Ors. 2016 (1) FAC 416 (UK); 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) and P.S. Sharma vs Madan Lal Kasturichandni & Anr. 2002 (2) FAC 224 (SC).
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 FSAT No. 21/18 Page No. 4 of 8 Sh. Arvind Kumar Singh & Anr. vs. State through, FSO be treated as an adulterated article. The appellants did not comply with the standards of rules / regulations of Food Safety and Standard Act. On the point of Accreditation of Laboratory, Ld. Chief Public Prosecutor for the State has argued that FSSAI has already issued Notification dated 05.07.2011 and 06.09.2018 to the effect that the Food Laboratories testing samples under the PFA Act will continue to perform their function of testing samples under Section 98 of FSS Act till any notification is issued under Section 43 of FSS Act. Therefore, functioning of food laboratory without NABL accreditation is valid. Ld. Chief PP for the State has further argued that the report of the Food Analyst is final in the present case since no application was moved on behalf of the appellants for referral to the Referral Food Laboratory. Therefore, the impugned order has been rightly passed by the Ld.ADM on the basis of the report and the materials 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; Izzazul versus State 2007(4) RCR Criminal 315; Kala Singh versus State of Haryana 1995 AIR SC 1948 and Jawahar versus State 2007(4) RCR (Criminal) 336.
8. Perusal of record reveals 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 FSAT No. 21/18 Page No. 5 of 8 Sh. Arvind Kumar Singh & Anr. vs. State through, FSO 9.0%. However, the Food Business Operator as well as M/s Goga Foods Ltd. neither appeared before the Designated Officer nor they opted for the appeal for analysis by the Referral Laboratory.
9. The appellants have contended that the appellants should not have been imposed penalty in view of marginal error / analytical error of 1%. However, the Report of Food Analyst can be considered to be final since no appeal was preferred against the said report by the appellants and the Ld. ADM passed the impugned order 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. This was the second offence committed by the same offenders / appellants herein. The appellantsherein prayed before the Ld. ADM as discussed in the impugned order dt.27.09.2018 that they will not repeat the same offence in future or that they will not use an opportunity to produce the impugned order as a "precedent" being lessor amount of penalty to gain the benefit before any superior court, therefore, the Ld. ADM vide the impugned order imposed a lesser penalty of Rs.01.00 lac only as against the maximum penalty of Rs.05.00 lacs, which has been prescribed for the offences repeated again and again.
10. Section 26 of the FSS Act 2006 provides responsibilities of the Food Business Operator. Sub clause (2)(ii) of Section 26 the said Act provides that no Food Business Operator shall himself or by any person on his behalf manufacturer, store, sell or distribute any article of food which is misbranded or substandard or contains extraneous matter. Section 26 of FSAT No. 21/18 Page No. 6 of 8 Sh. Arvind Kumar Singh & Anr. vs. State through, FSO the FSS Act, 2006, seeks to provide for the responsibilities of the food business operator to ensure that the articles of food satisfy the requirements of the Act and the rules and regulations made thereunder at all stages of production, processing, import, distribution and sale within the businesses under his control. Subclause (2) provides that no food business operator shall himself or by any person on his behalf manufacturer, store, sell or distribute any article of food which is misbranded or substandard or contains extraneous matter or which is for the time being prohibited by the Food Authority or the Central Government or the State Government in the interest of public health. The appellants were given an opportunity to file an appeal before Designated Officer under Section 46(4) FSS Act for sending a counterpart of sample to the Referral Laboratory but they did not exercise this option in the instant case. Therefore, the Ld. ADM passed the impugned order on the basis of the report of Food Analyst and materials.
11. 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 appellants as well as the Ld. Chief PP for the State, I am of the considered opinion that the sample food article i.e. "Pasteurized Full Cream Milk" did not conform to the specified standard as laid down in Regulation 1.1.1.10 of FSS (FPS & FA) Regulations. Nonconforming to the specified standard rendered the sample i.e. Pasteurized Full Cream Milk as substandard in terms of Section 3(1)(zx) of the FSS Act. The parameters and standards laid down by the legislatures were not followed by the appellants for selling the milk. The substandard FSAT No. 21/18 Page No. 7 of 8 Sh. Arvind Kumar Singh & Anr. vs. State through, FSO milk is to be treated as an adulterated article, even if it has not caused injuries to health. Section 51 of FSS Act prescribes a maximum penalty of Rs.5,00,000/ (Rupees Five Lacs only). However, the Ld. ADM imposed a meager penalty of Rs.1,00,000/ each upon the appellantsherein keeping in view the undertaking given by the appellants before it that they will not repeat the same offence in future or that they will not use an opportunity to produce the impugned order as a "precedent" being lessor amount of penalty to gain the benefit before any superior court. Thus, the appellants have failed to demonstrate any justified reason to interfere with the impugned order dt.27.09.2018 of the Ld. ADM. The judgment relied upon by the Ld. Counsel for the appellants are distinquishable to the facts of the present case. 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. YASHWANT Digitally signed by YASHWANT KUMAR KUMAR Date: 2019.11.25 17:25:59 +0530 Announced in open Court (YASHWANT KUMAR) on 25th day of November 2019 District & Sessions Judge/FSAT Patiala House Courts, New Delhi FSAT No. 21/18 Page No. 8 of 8 Sh. Arvind Kumar Singh & Anr. vs. State through, FSO