Delhi District Court
Prafulla Parkash Bhatnagar vs State on 16 September, 2015
IN THE COURT OF SHRI AMAR NATH: DISTRICT & SESSIONS JUDGE
NEW DELHI
FSAT Appeal No. 40/13
1. Prafulla Parkash Bhatnagar,
R/o Plot No.26D, Sector3, IMT, Manesar122050,
Distt. Gurgaon, Haryana.
Nominee of M/s. Mehsana Distt. Cooperative,
Milk Producers Union Ltd., Mehsana.
2. M/s. Mehsana Distt. Cooperative Milk Producers Union
Ltd., Mehsana, through Prafulla Parkash Bhatnagar,
Nominee. ........ Appellants
Versus
1. State, Through Commissioner,
Department of Food Safety,
Govt. of NCT of Delhi,
A20, Lawrence Road, Delhi110035.
2. Designated Officer,
Department of Food Safety,
Govt of NCT of Delhi,
A20, Lawrence Road,
Delhi110035.
3. Sh. C.B. Boora, FSO,
Department of Food Safety,
Govt of NCT of Delhi,
A20, Lawrence Road,
Delhi110035. ........ Respondents
Date of Institution of Appeal : 17.07.2013
Judgment reserved on : 14.09.2015
Judgment announced on : 16.09.2015
FSAT No. 40/13
Prafulla Parkash Bhatnagar & Anr. vs. State & Anr. Page No. 1 of 9
J U D G M E N T
This appeal is directed against the order dated 03.07.2013 (hereinafter referred to as "Impugned Order") passed by Sh. S.S. Parihar, Ld. Adjudicating Officer/ADM (NorthWest), Govt. of NCT of Delhi whereby penalty of Rs. 1,12,500/ ( 75% of Rs, 1,50,000/) was imposed upon both the appellants to be borne in equal share by them praying therein; to set aside the impugned order.
2. The appeal was admitted. The notice of the appeal was given to the respondent who has resisted the same. TCR was requisitioned.
3. I have heard the rival contentions advanced on behalf of both the parties and have carefully perused the trial court record.
4. Feeling aggrieved, the appellants have challenged the impugned order mainly on the following grounds;
a) The Ld. Adjudicating Officer passed the impugned order in a very cryptic and mechanical manner by non application of mind and thus, prosecuting the accused persons (appellants herein) is vitiated.
b) There was a vast variation between the analytical values of the Food Analyst, Delhi and the Director of Referral Laboratory at Mysore indicated that representative sample was not taken and as such, the appellants become entitled to be given the benefit of doubt.
c) Ld. Adjudicating officer has failed to appreciate that Gurber's method of analysis of the quality of food substance was not sure and accuracy test. The public analyst, however, followed the Gurber's method and on the basis of such report the prosecution itself is bad.
FSAT No. 40/13Prafulla Parkash Bhatnagar & Anr. vs. State & Anr. Page No. 2 of 9
5. The facts giving rise to this appeal are that on 02.09.2011 at 6:30 pm Food & Safety Officer Sh. Chander Bhan Boora went to the premises of M/s. Anand Dairy, Shop No. D14/223, Sector7, Rohini, Delhi and collected a sample of "Pasteurized Toned Milk" of two plastic packets each bearing identical label declaration, an article of food for analysis from Sh. Mukesh Jain FBO where the said food article was found vending/exposed/meant stored for the sale for human consumption. A sample of "Pasteurized Toned Milk" was sent to the public analyst for analysis. On testing, the sample was found to be substandard owing to non confirming to the standard prescribed under the law. At the request of the accused (appellants herein), counterpart of the sample was sent to the Director, CFL for analysis invoking the provisions of Section 13 (2) of the Prevention of Food Adulteration Act (hereinafter to be referred as PFA Act). The sampled article of food "Pasteurized toned Milk" was stated to be packaged by the appellant no. 2 M/s. Mehsana District Cooperative Milk Producers Union Ltd. and appellant no. 1 Sh. Prafulla Prakash Bhatnagar was its Nominee who continues to be its Nominee under the provisions of Food Safety and Standards Act, 2006 (hereinafter to be referred as FSS Act) as he used to look after its day to day business affairs and as such, the packer/producer and its Nominee along with the Marketer/Distributor and its nominee and seller were held liable to the penalty of fine u/s 51 of the FSS Act.
6. First & foremost point raised by the appellants that there was variation in the two Experts Report with regard to the samples sent that too beyond the acceptable range which renders the samples unrepresentative and as such the appellants become entitled to be given the benefit of doubt. To substantiate their plea, the counsel for the appellants has placed reliance upon the following judgments:
FSAT No. 40/13Prafulla Parkash Bhatnagar & Anr. vs. State & Anr. Page No. 3 of 9
i) In the matter of Food Inspector Vs. Naresh Kumar & Ors., 2014 (2) FAC 276 Delhi High Court wherein it has been held that "Leave to appeal against the impugned judgment acquitting the Respondent for the offence under Section 2(ia) (a) (b) (c) (m) of Prevention of Food Adulteration Act (PFA Act) punishable under Section 16 (1)
(a) read with Section 7 of the PFA Act On the facts of the present case, the view taken by the learned ACMM that the variation in the two test reports of the PA and the CFL being beyond the permissible limit, the samples taken could not be said to be truly representative of the food article in question cannot be said to be suffering from any legal infirmity.
ii) Full Bench decision in Municipal Corporation of Delhi vs Bhishm Sarup, (1970) ILR 1 Delhi 518, is of a binding nature wherein observed that once the Director of CFL has examined the sample and has delivered his certificate, under proviso to sub Section (5) of Section 13 of the Act, the certificate is the final and conclusive evidence to the facts stated therein.
iii) In the matter of Kanshi Ram vs. State 2005 (2) FAC 219, it was observed that the report of the Public Analyst as well as the report of the Central Food Technological Research Institute (CFTRI), when compared, showed that there was an unacceptable variation in the two samples. The acquittal FSAT No. 40/13 Prafulla Parkash Bhatnagar & Anr. vs. State & Anr. Page No. 4 of 9 could, therefore, be sustained on this ground.
iv) In the matter of Food Inspector/Food Safety Officer vs. Abdul Jamil, 2014 (2) FAC 138, our own Hon'ble High Court has held that when the two expert reports were contradictory to each other by the report of Public Analyst adjudged deficiency of the sample as regards milk solids not fat, the report of the CFL, Pune spoke of deficiency in respect of milk fat then the benefit of doubt was rightly given to the accused.
v) In the matter of Raja Ram Seth & Sons and Anr. Vs. Delhi Administration, 2012 (II) FAC 523 it has been held that the two reports prepared by the public Analyst and the Director, CFL show a sharp and substantive variation in both milk solid not fat and milk fat content. Consequently, the samples drawn by the respondent cannot be said to be representative.
vi) 1998 SCC (Cri) 564 titled as Corporation of the City of Nagpur Vs. Neetam Manik Rao Kature and Ors. wherein it has been held that Gurber's method of analysis of the quality of food followed by public analyst Prosecution initiated on the basis of such reportAcquittal of the accused in such a case by the High Court, held, based on a reasonable view Hence, calls for no interference Constitution of India, Art.
136 Interference in criminal miscellaneous matters Scope.
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7. Per contra, the learned Special PP for the respondent has refuted the entire line of arguments whilst making submissions that the milk in question was manufactured by the appellant no.2 M/s. Mehsana District Cooperative Milk Producers Union Ltd. and the said milk was found to be substandard as per the report of the Public Analyst and as such, they cannot be absolved from their liabilities. It is further argued that once the accused has exercised his rights u/s 13(2) of the PFA Act and a second sample was sent for testing to the Central Food Laboratory then the question of variation in two reports leading to the grant of benefit of doubt to the appellants would not arise. It cannot be ignored that the "Pasteurized Toned Milk" was manufactured by the appellants for human consumption and the same is opined to be substandard because of violation and as such, it comes within the mischief of Section 26 (2)(ii) of the FSS Act read with Section 3(1)(zx) of FSS Act. Section 51 of the FSS Act provides for penalties.
8. Before proceeding further, let me examine the contents of the report of the Public Analyst dated 10.09.2011 as the same are being reproduced as under:
i) Sample Description: Sample received loose alongwith label declaration which declares the brand name as Amul Taaza pasturised toned milk.
ii) Physical appearance: White coloured sample of milk. Iii) Label: Complies with Regulation no. 2.2 of Food Safety & Standard (Packaging & Labelling Regulation), 2011.
S. No. Quality Name of Method Result Prescribed Standards
Characteristics of Test used as per:
(a) Food Safety and
Standards (Food
Products and Food
Additive ) Regulations,
FSAT No. 40/13
Prafulla Parkash Bhatnagar & Anr. vs. State & Anr. Page No. 6 of 9
2011.
(b) As per label
declaration for
proprietary foods.
(c) As per provisions of
the Act and
Regulations, for both
above
1 Milk Fat () Gerber Method 3.2% Not less than 3.0 per cent
2 Milk Solids not fat By difference from 8.27% Not less than 8.5 per cent
() total solids
3 B.R. At 40 Deg. C 28.011 AOAC 42 40.0 to 43.0
()
4 Test for starch () Iodine test Negative Negative
5 Test for sugar () 4.2.1 ICMR Negative Negative
6 Test for added DMAB method Negative Negative
urea ()
7 Test for Gelatin () Picric acid test Negative Negative
8 Test for Hydrogen Benzidine test Negative Negative
Peroxide ()
9 Test for Borate () Turmeric Test Negative Negative
10 Test for Rosalic acid test Negative Negative
neutralizer ()
Opinion : The sample is substandard because milk solid not fat is less than the prescribed minimum limit of 8.5%.
9. Now, the question arises as to whether the report of PA could be looked into for the purpose of demonstrating that the sample sent to the CFL was not truly representative.
10. Turning to the facts in hand, initially the sample was sent to the Public Analyst who gave a report stating that the sampled milk was found to be substandard in respect of Fat and SNF to the extent of 3.2% & 8.27% as against the prescribed FSAT No. 40/13 Prafulla Parkash Bhatnagar & Anr. vs. State & Anr. Page No. 7 of 9 minimum of 3% & 8.5% respectively which fell short by 0.23% only in the solids not fat content whereas when the referral sample was analyzed at the CFL, Mysore wherein the test report was reversed mentioning therein that the fat was found to be deficient and SNF to be as per prescribed standard vide certificate no. CFL/753/776/2011 dated 01.12.2011, which clearly suggests that the two experts reports were contradictory to each other. It is settled law that by virtue of section 13(5) of the PFA Act, the report of the Director, CFL is final and conclusive of the facts stated therein as well as the contents of the sample.
11. If the sample is representative and examined by two different experts under ideal conditions, the total analytical variation may be Y 0.3%. If the variation of the two reports is found more than Y 0.3%, then the sample would have to be discarded as being nonrepresentative as so observed in the judgment of Kanshi Nath (supra).
12. If the facts of the case of the appellants are examined in the light of the judgments (supra), it appears that though M/s Mehsana District Cooperative Milk Producer Union Ltd. was the packer/producer of the food article in question but it cannot be doubted that the food item was sent to the public analyst and CFL, Mysore for analysis and outcome of both the experts report is contradictory to each other. Furthermore, the Gurber's method was applied for analysis by the public analyst while preparing the report and thus, it can be said that this is not a reliable test. 1998 SCC (Cri) 564 titled as Corporation of the City of Nagpur Vs. Neetam Manik Rao Kature and Ors is relied upon.
13. On the basis of reappreciation of the material including the evidence FSAT No. 40/13 Prafulla Parkash Bhatnagar & Anr. vs. State & Anr. Page No. 8 of 9 from the trial court record, I am of the considered view that the court of Ld. Adjudicating Officer fell into an error and failed to appreciate the attended circumstances with the adduced material including the documents such as two different experts report having variation more than Y0.3 and thus, the order of the Ld. Adjudicating Officer is vitiated with error of law, impropriety and misappreciation of the material and in this context, I feel every justification to interfere in this appeal in the impugned order given by the Ld. Adjudicating Officer. Thus, the impugned order dated 03.07.2013 is set aside by accepting the appeal. Copy of this judgment be placed in the trial court record and thereafter, TCR be sent back. Appeal file be consigned to the record room.
Announced in the open court on this 16th day of September, 2015 (AMAR NATH) District & Sessions Judge New Delhi FSAT No. 40/13 Prafulla Parkash Bhatnagar & Anr. vs. State & Anr. Page No. 9 of 9 IN THE COURT OF SHRI AMAR NATH :DISTRICT & SESSIONS JUDGE :
NEW DELHI FSAT Appeal No. 40/13 Prafulla Parkash Bhatnagar & Anr.
Vs. State, Department of Food Safety & Anr.
16.09.2015 Present: None.
Vide common judgment of the even date, the impugned order dated 03.07.2013 is set aside by accepting the appeal. Copy of this judgment be placed in the trial court record and thereafter, TCR be sent back.
Appeal file be consigned to the record room.
(AMAR NATH) District & Sessions Judge New Delhi/16.09.2015 FSAT No. 40/13 Prafulla Parkash Bhatnagar & Anr. vs. State & Anr. Page No. 10 of 9 FSAT No. 40/13 Prafulla Parkash Bhatnagar & Anr. vs. State & Anr. Page No. 11 of 9