Delhi District Court
Hardeep Singh Banga vs State on 16 September, 2015
IN THE COURT OF SHRI AMAR NATH: DISTRICT & SESSIONS JUDGE, NEW DELHI
FSAT Appeal No. 41/13
1. Hardeep Singh Banga,
C/o M/s. Gujarat Coop. Milk
Marketing Federation Ltd.,
24/1, DBlock Indl. Area,
Janakpuri, New Delhi.
2. M/s. Gujarat Coop. Milk Marketing Federation Ltd.,
24/1, DBlock Indl. Area,
Janakpuri, New Delhi. ........ Appellants
Versus
1. State, Through Commissioner,
Department of Food Safety,
Govt. of NCT of Delhi,
A20, Lawrence Road, Delhi110035.
2. Sh. O.P.S. Ahlawat,
Food Safety Officer,
Department of Food Safety,
Govt of NCT of Delhi,
A20, Lawrence Road,
Delhi110035. ...... Respondents
Date of Institution of Appeal : 18.07.2013
Judgment reserved on : 14.09.2015
Judgment announced on : 16.09.2015
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. 18,750/ was imposed upon both the appellants to be borne in equal share by them praying therein; to FSAT No. 41/13 H.S. Banga & Anr. vs. State & Anr. Page No. 1 of 9 set aside the impugned order.
2. The appeal was admitted. The notice of the appeal was given to the respondents who have 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) The Ld. Adjudicating Officer had failed to appreciate that the appellants were relying on the guarantee of the coaccused who was the manufacturer/packer of the sampled commodity and both the appellants were only distributing the milk procured by them and hence, they were protected by the provisions of Section 80(B)(2)(d)
(i) of the Food Safety & Standards Act, 2006 (hereinafter to be referred "FSS Act") read with Section 26(4) of the FSS Act.
c) There was a vast variation between the analytical values of the Food Analyst, Delhi and the Director of Referral Laboratory at Mysore indicates that representative sample was not taken and as such, the appellants become entitled to be given to the benefit of doubt.
5. The facts giving rise to this appeal are that on 02.09.2011 at 5:00 pm Food & Safety Officer Sh. O.P.S. Ahlawat went to the shop of Sh. Surender Kumar S/o Sh. Ram Chand (FBO, Shop No. E20/30, Sector3, Rohini, New Delhi) and purchased sample consisted of approximately 2 litres of "Pasteurized Full Cream Milk" in plastic packets of one litre each, an article of food for analysis from Sh. Surender Kumar, FBO where the FSAT No. 41/13 H.S. Banga & Anr. vs. State & Anr. Page No. 2 of 9 said food article was found selling/exposed/meant stored for the sale for human consumption. On testing, one counterpart of the sample was found to be substandard. The sampled article of "Pasteurized Full Cream Milk" was supplied by M/s. Gujrat Co operative Milk, Marketing Federation Ltd. (appellant no. 2) through its Nominee Sh. Hardeep Singh Banga (appellant no.1 herein) who used to look after its day to day business. The sampled article of food "Pasteurized Full Cream Milk" was manufactured by M/s. Mehsana District Cooperative Milk Producers Union Ltd. and Sh. Prafulla Prakash Bhatnagar was its Nominee who continues to be its Nominee under the provisions of FSS Act, 2006 as he used to look after its day to day business affairs and as such, the manufacturer/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 is 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:
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 FSAT No. 41/13 H.S. Banga & Anr. vs. State & Anr. Page No. 3 of 9 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 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.
FSAT No. 41/13 H.S. Banga & Anr. vs. State & Anr. Page No. 4 of 9v) 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.
7. Per contra, the learned Special PP for the respondents has refuted the entire line of arguments whilst making submissions that though the milk in question was stated to be packed/ manufactured by the M/s. Mehsana District Cooperative Milk Producers Union Ltd. but it cannot be ignored that the same was for human consumption and the said milk was distributed by the present appellants which was found to be sub standard as per the report of the Public Analyst and thus, 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 Prevention of Food Adulteration Act (hereinafter to be referred as 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 Full Cream Milk" was distributed 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 in sealed sample bottle.
ii) Physical appearance: White coloured sample of milk.
FSAT No. 41/13 H.S. Banga & Anr. vs. State & Anr. Page No. 5 of 9iii) Label: Original label not received with sample.
S. Quality Name of Method of Result Prescribed Standards as
No. Characteristics Test used per:
(a) Food Safety and
Standards (Food Product
and Food Additive )
Regulations, 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 6.2% Not less than 6.0%
2 Milk Solids not fat () By difference from 8.52% Not less than 9.0%
total solids
3 B.R. At 40 Deg. C () 28.011 AOAC 41 40.0 43.0
4 Test for starch () Iodine test Negative Negative
5 Test for sugar () 4.2.1 ICMR Negative Negative
6 Test for added urea DMAB method Negative Negative
()
7 Test for salt () Standard AgNO3 Negative Negative
8 Test for Gelatin () Picric acid test Negative Negative
9 Test for Hydrogen Benzidine test Negative Negative
Peroxide ()
10 Test for Neutralizer Rosalic acid test Negative Negative
()
11 Test for Borate () Turmeric test Negative Negative
12 Test for mineral oil () 28.133 AOAC Negative Negative
13 Test for Glucose () 4.2.4 ICMR Negative Negative
Opinion : The sample is substandard because milk solid not fat is less than the prescribed minimum limit of 9.0%.
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.
FSAT No. 41/13 H.S. Banga & Anr. vs. State & Anr. Page No. 6 of 910. In the instant case, 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 6.2% & 8.52% as against the prescribed minimum of 6% & 9% respectively which fell short by 0.48% 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/752/775/2011 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. From the material available on record, it stands established 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.
13 Now, I am coming to the next plea of the appellants that they were relying upon the guarantee of the manufacturer/producer M/s. Mehsana District Cooperative Milk Producers Union Ltd. who was the manufacturer/packer of the sampled commodity and their role was to distribute the milk produced by them and hence, they are protected by the provisions of Section 80(B)(2)(d)(i) of the FSS Act read with Section 26(4) of the FSS Act as well as they purchased the sampled commodity of "Pasteurized Full Cream Milk" in FSAT No. 41/13 H.S. Banga & Anr. vs. State & Anr. Page No. 7 of 9 sealed plastic packets and further supplied the same to the M/s. Jai Ambe Agency, Sector 5, Rohini, Delhi which is a proprietorship concerned of Sh. Amit Bajaj and as such, impugned order is not sustainable against them.
14. Before proceeding further, let me quote the relevant part of the aforesaid section:
80. Defences which may or may not be allowed in prosecution under this Act.
(A) .....
(B) Defence of due diligence--
(1).....
(2) Without limiting the ways in which a person may satisfy the requirements of clause (1), a person satisfies those requirements if it is proved -
a).....
(b)....
(c)....
(d) in the case of an offence involving the sale of food, that--
(i)The person sold the food in the same condition as and when the person purchased it.
15. If the facts of the case of the appellants are examined in the light of the provision as referred to above, it makes clear that they were not manufacturer/packer of the sampled commodity and the sampled commodity was taken by the FBO cum Proprietor in the same sealed condition as received/purchased from M/s. Mehsana District Cooperative Milk Producers Union Ltd. and the appellants distributed the packets of milk in the same condition as were manufactured by M/s. Mehsana District Cooperative Milk Producers Union Ltd. and gradually passed to retailers/sellers and as such, none of the appellants can be held responsible for any violation, therefore, I find force in the contention of the appellants.
16. On the basis of reappreciation of the material including the evidence from FSAT No. 41/13 H.S. Banga & Anr. vs. State & Anr. Page No. 8 of 9 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 day of 16th September, 2015 (AMAR NATH) District & Sessions Judge New Delhi FSAT No. 41/13 H.S. Banga & Anr. vs. State & Anr. Page No. 9 of 9 IN THE COURT OF SHRI AMAR NATH DISTRICT & SESSIONS JUDGE : NEW DELHI DISTRICT :
NEW DELHI FSAT Appeal No. 41/13 Hardeep Singh Banga & 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. 41/13 H.S. Banga & Anr. vs. State & Anr. Page No. 10 of 9 FSAT No. 41/13 H.S. Banga & Anr. vs. State & Anr. Page No. 11 of 9