Delhi District Court
M/S Mehsana District CoOperative vs State on 2 November, 2019
IN THE COURT OF SH. YASHWANT KUMAR
DISTRICT & SESSIONS JUDGE/FSAT, NEW DELHI
In the matter of :
FSAT No. 01/17 (CNR No. DLND010001282017)
M/s Mehsana District Cooperative
Milk Producers Union Ltd.
Manufacturing Unit:Dudhmotisagar Dairy
Plot No. 17, HUDA Industrial Area
Dharuhera 123 106, District Rewari (Haryana)
Head Office at : Post Box No. 1
Highway, Mehsana - 384 002 (Gujarat)
Through Sh. Prafulla Prakash Bhatnagar
Authorized Representative
(Manufacturing Company)
..... Appellant
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
16.11.2016 OF LD. ADJUDICATING
OFFICER /ADDITIONAL DISTRICT
MAGISTRATE (SOUTH WEST), KAPASHERA,
NEW DELHI.
Date of filing of appeal : 03.01.2017
Date of arguments : 25.10.2019
Date of judgment : 02.11.2019
FSAT No. 01/17 Page No. 1 of 12
Mehsana District CoOperative Milk Producers Union Ltd. vs. State through, FSO
J U D G M E N T :
1. Vide this judgment, I shall dispose of the present appeal, challenging the order dated 16.11.2016 ("the impugned order" in short) of Ld. Adjudicating Officer/Additional District Magistrate (South West), Kapashera, New Delhi ("ADM" in short), directing the appellant to pay a penalty of Rs.50,000/ under Section 51 of The Food Safety and Standards Act, 2006 ("FSS Act" in short) for selling substandard milk in contravention to Section 26 (2)(ii) of FSS Act read with Section 3(1) (zx) of FSS Act, 2006 and Regulation 2.1.1 (However, it is mentioned as Regulation 2.1.5 in the impugned order) 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 11.06.2015 a sample of "Amul Gold Pasteurized Full Cream Milk" was lifted by the Food Safety Officer (in short FSO) from Sh. Ashok Kumar, FBOcumProprietor of M/s Punjab Dairy, Shop No. G65, Plot No. 9, Vikas Surya Galaxy, Sector4, Dwarka, New Delhi110075, 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.24.06.2015 as the milk fat was found to be 5.62% against the prescribed minimum standard of 6.0% and milk solid not fat (SNF) was found to be 8.60% against the prescribed minimum standard of 9.0%. After receiving the said report of Food Analyst, Delhi, the manufacturer / packer through its nominee filed an FSAT No. 01/17 Page No. 2 of 12 Mehsana District CoOperative Milk Producers Union Ltd. vs. State through, FSO 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. 28.10.2015 declared the sample to be substandard as defined under Section 3(1) (zx) of FSS Act with the observations that "a) Milk fat contents was found to be 5.5% against minimum prescribed of 6.0%. However, the milk solid not fat was found to be 9.3% against the minimum prescribed limit of 9.0% by the RFL. Consequently, a complaint was filed against six respondentstherein including the appellantherein by the FSO before the Adjudicating Officer. After pleadings and enquiry, the Ld. ADM passed the impugned order dated 16.11.2016 imposing a penalty of Rs.50,000/ on the appellantherein.
3. The appellant 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 Food Laboratory is not a reliable method for testing milk fat in milk as has been held by the Hon'ble Supreme Court in Corp. 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 FSAT No. 01/17 Page No. 3 of 12 Mehsana District CoOperative Milk Producers Union Ltd. vs. State through, FSO it was based upon "Gerber Method". Both the aforesaid reports were contradictory to each other, as in the Food Analyst report dt. 24.06.2015, the Milk Fat was found to be 5.62% and SNF was found to be 8.60% as against Referral Laboratory report dt. 28.10.2015 wherein milk fat contents was found to be 5.5% and SNF was found to be 9.3%. 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 variance in both the said reports. The analytical error in the aforesaid reports was more than 0.3%, hence, the benefit should have been given to the appellant herein. The Ld. ADM failed to appreciate that the appellant was entitled to the benefit of marginal difference / analytical error in analysis as has been observed by the Hon'ble Apex Court. The Laboratory of the Food Analyst, Delhi, is not an accredited laboratory, hence, the said report could have not been relied upon by the ADM. 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 appellant and Ld. Chief Public Prosecutor for the State and have perused the written synopsis filed on behalf of the appellant and also the record carefully.
6. The Ld. Counsel for the appellant 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 appellant may be given the benefit of doubt. The Gerber FSAT No. 01/17 Page No. 4 of 12 Mehsana District CoOperative Milk Producers Union Ltd. vs. State through, FSO 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 appellant 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 appellant, in support of his arguments, has relied upon the judgments in the cases of Corporation of the City of Nagpur (supra) and G.K. Upadhyay (supra).
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 appellant herein. The parameters and standards were not followed by the appellant 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 appellant 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 -
FSAT No. 01/17 Page No. 5 of 12Mehsana District CoOperative Milk Producers Union Ltd. vs. State through, FSO 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 appellant has challenged the impugned order mainly on the grounds that there was variations in both the aforesaid reports and that no penalty could have been imposed on the appellant in view of contradictory reports. The 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 appellant did not request for sending the sample to NABL Accredited Laboratory. The Food Analyst vide his report dated 24.06.2015, opined the sample as substandard because milk fat and milk solids not fat are less than the prescribed minimum limits of 6.0% and 9.0% respectively. On receipt of the Food Analyst's report from the Designated Officer, the appellant requested for sending the sample to Referral Food Laboratory. The Director of Referral Food Laboratory, Mysore vide his report dated 28.10.2015 opined that the sample food article FSAT No. 01/17 Page No. 6 of 12 Mehsana District CoOperative Milk Producers Union Ltd. vs. State through, FSO contained milk fat % by weight as 5.5 i.e., below the prescribed standard as per Regulation No.2.1.1. It further found the food sample to be sub standard, as defined under Section 3(1)(zx) FSS Act as it did not conform to the standards laid down for Full Cream Milk under the provisions of FSS(FPS & FA) Regulations.
9. The appellant has contended that the appellant should not has 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 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..... "FSAT No. 01/17 Page No. 7 of 12
Mehsana District CoOperative Milk Producers Union Ltd. vs. State through, FSO
11. In the present case, the appellant after receiving the said report of the Food Analyst, Delhi, preferred an appeal before the Designated Officer, South West, Kapashera, 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.
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 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 FSAT No. 01/17 Page No. 8 of 12 Mehsana District CoOperative Milk Producers Union Ltd. vs. State through, FSO 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 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. 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 FSAT No. 01/17 Page No. 9 of 12 Mehsana District CoOperative Milk Producers Union Ltd. vs. State through, FSO 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. 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 FSAT No. 01/17 Page No. 10 of 12 Mehsana District CoOperative Milk Producers Union Ltd. vs. State through, FSO 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 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 subsandard 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 FSAT No. 01/17 Page No. 11 of 12 Mehsana District CoOperative Milk Producers Union Ltd. vs. State through, FSO Ld. Chief PP for the State, I am of the considered opinion that the sample food article i.e. "Amul Gold Pasteurized Full Cream Milk" did not conform to the specified standard as laid down in Regulation 2.1.1 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. Section 51 FSS Act prescribes a maximum penalty of Rs. Five Lacs for substandard food. However, the Ld.ADM imposed a meagre penalty of only Rs.50,000/ (Rupees Fifty thousand only) upon the appellant. Thus, the appellant has failed to demonstrate any justified reason to interfere with the impugned order dt.16.11.2016 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.
YASHWANT Digitally signed by
YASHWANT KUMAR
KUMAR Date: 2019.11.02 18:55:09
+0530
Announced in open Court (YASHWANT KUMAR)
on 02nd day of November 2019 District & Sessions Judge/FSAT
Patiala House Courts, New Delhi
FSAT No. 01/17 Page No. 12 of 12
Mehsana District CoOperative Milk Producers Union Ltd. vs. State through, FSO