Delhi District Court
Sh.K.P. Singh S/O Sh. Jeeraj Singh vs State on 31 October, 2019
IN THE COURT OF SH. YASHWANT KUMAR
DISTRICT & SESSIONS JUDGE/FSAT, NEW DELHI
In the matter of :
FSAT No. 41/16 (CNR No. : DLND010052722016)
1. Sh.K.P. Singh S/o Sh. Jeeraj Singh
M/s Nagar Dairy Pvt. Ltd.
Village Shakarpur (Kucheshar Road)
Post Babugarh Cantt.
Distt. Hapur (UP) - 245 207.
(Nominee of Packer/Manufacturing Company)
2. M/s Nagar Dairy Pvt. Ltd.
Village Shakarpur (Kucheshar Road)
Post Babugarh Cantt.
Distt. Hapur (UP) - 245 207.
(Packer/Manufacturing Company)
.....Appellants
Vs
State, Through Sh. Ranjit 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
31.05.2016 OF LD. ADJUDICATING OFFICER
/ADDITIONAL DISTRICT MAGISTRATE
(SHAHDARA), DELHI.
FSAT No. 41/2016 Page No 1 of 12
K.P. Singh Anr. Vs FSO
Date of filing of appeal : 05.07.2016
Date of arguments : 25.10.2019
Date of judgment : 31.10.2019
J U D G M E N T :
1. Vide this judgment, I shall dispose of the present appeal, challenging the order dated 31.05.2016 ("the impugned order" in short) of Ld. Adjudicating Officer/Additional District Magistrate (Shahdara) ("ADM" in short), New Delhi directing the appellant to pay a penalty of Rs.1,00,000/, under Section 51 of The Food Safety and Standards Act, 2006 for violation of Section 26(2)(ii) of FSS Act read with Section 3(1) (zx) of FSS Act, 2006 ("FSS Act" in short) and Regulation 2.1.1.1 of Food Safety and Standards (Food Products Standard & Food Additives), Regulations, 2011 {FSS(FPS & FA)} Regulations in short), for selling substandard milk.
2. Briefly stating, the facts as per appeal are that on 29.12.2014, a sample of "Amul Gold Pasteurized Full Cream Milk" was lifted by the Food Safety Officer (in short FSO) from Sh. Gulshan Kumar Chawla, FOBcumProprietor of M/s Chawla Milk Products, Shop No. C42&45, Jhilmil Colony, Delhi110095, 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.13.01.2015 as the milk solid not fat (SNF) was found to be 8.50% against the prescribed minimum of 9.0%. However, the sample conformed to the standards milk fat and other parameters as laid down FSAT No. 41/2016 Page No 2 of 12 K.P. Singh Anr. Vs FSO under FSS Act. After receiving the report of Food Analyst, Delhi, the appellant 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. 12.03.2015 declared the sample to be substandard as defined under Section 3(1) (zx) of FSS Act, 2006 with the observations that "a) Milk fat contents was found to be 5.6% against minimum prescribed of 6.0% and b) Milk solids not fat was found to be 8.6% against minimum prescribed of 9.0%. Consequently, a complaint was filed against seven respondentstherein including the appellant Nos. 1 & 2herein by the FSO before the Adjudicating Officer. After pleadings and enquiry, the Ld. ADM passed the impugned order dated 31.05.2016 imposing a consolidated penalty of Rs.1,00,000/ on the appellantsherein.
3. The appellant have challenged the impugned order inter alia on the main grounds among others that the ADM has failed to appreciate the fact that the Referral Food Laboratory, Mysore tested the FAT contents "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 and also by the Hon'ble High Court of Gujarat in case titled G.K. Upadhyay Vs. Kanubhai Raimalbhai Rabri. The report of Food Analyst and Referral Laboratory, Mysore were contradictory as in the Food Analyst report FSAT No. 41/2016 Page No 3 of 12 K.P. Singh Anr. Vs FSO dt. 13.01.2015 the Milk Fat was found to be 6.0% and SNF was found to be 8.50% as against Referral Laboratory report dt. 12.03.2014 wherein milk fat contents was found to be 5.6% and SNF was found to be 8.60%. There was variance of more than 0.3% in the reports of Food Analyst and that of the Referral Food Laboratory, hence, benefit ought to have been given to the appellants herein. The FSO failed to follow proper sampling procedure as evident from the documents prepared at the spot. The application of the appellants herein for crossexamination of the FSO was not considered by the ADM and no opportunity was given to them to prove their defence by examining the material witnesses. 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. The ADM has failed to follow the provisions under Rule 3.1.1 of Food Safety & Standards Rules, 2011. 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 on behalf of the appellants and also the record carefully.
6. The Ld. Counsel for the appellants argued 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 may be given the benefit of FSAT No. 41/2016 Page No 4 of 12 K.P. Singh Anr. Vs FSO doubt. The Gerber Method adopted in this case by Food Analyst 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 appellants 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 State of Himachal Pradesh Vs. Gulzari Lal & Ors. 2014 (1) FAC 141 (HP); State of Gujrat Vs. Omprakash Dhanshriram Pandit 2015 (1) FAC 313 (Gujarat) and in the case of G.K. Upadhyay Vs. Kanubhai Raimalbhai Rabari & Anr. 2009 (1) FAC 499 (Gujarat).
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. 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 FSAT No. 41/2016 Page No 5 of 12 K.P. Singh Anr. Vs FSO 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' challenge to the impugned order is two fold. Firstly, on the ground that there is variation in the findings in the Food Analyst's report and the report of Referral Food Laboratory and that no penalty could have been imposed on the appellant in view of contradictory reports. The appellants' another challenge to the impugned order is that proper procedure as per law was not followed. The appellants have also challenged the impugned order that the "Gerber Method", which was adopted by the Food Analyst 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 counter part 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 13.01.2015, opined the sample food article to be substandard because milk solids not fat is less than the prescribed minimum limit of 9.0%. 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 12.03.2015 reported that the sample food article contained milk solids not fat % by weight as 8.6 i.e., below the prescribed standard as per Regulation No.2.1.1. It found the food sample to be substandard, in the light of Section 3(1)(zx) FSS Act as it did not FSAT No. 41/2016 Page No 6 of 12 K.P. Singh Anr. Vs FSO conform to the standard laid down for Full Cream milk under the provisions of FSS(FPS & FA) Regulations.
9. The appellants have contended that the appellants should not have 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 Certificate 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..... "
11. In the present case, the appellants after receiving the said report of the Food Analyst, Delhi, preferred an appeal before the Designated Officer, Shahdara 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 FSAT No. 41/2016 Page No 7 of 12 K.P. Singh Anr. Vs FSO 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 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."
FSAT No. 41/2016 Page No 8 of 12 K.P. Singh Anr. Vs FSO
13. 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 Food Safety Officer filed counter reply before the Ld. ADM, wherein he mentioned 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 clarified by the Food Safety Officer in his counter reply 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 Famiy 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 lapse including food safety lab was following the Gerber Method. The Ld. ADM, vide the impugned order dt.31.05.2016, considered the contentions of the appellants and also the Gerber Method as well as the judgments in the case of Keshubhai Ranambhai Tukadiya and 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.
FSAT No. 41/2016 Page No 9 of 12 K.P. Singh Anr. Vs FSO
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 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 FSAT No. 41/2016 Page No 10 of 12 K.P. Singh Anr. Vs FSO 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.
15. 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 FSAT No. 41/2016 Page No 11 of 12 K.P. Singh Anr. Vs FSO 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 Regulation 2.1.1:1 FSS (FPS & FA) Regulations. Non conforming 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 Lakhs. However, the Ld.ADM imposed a consolidated penalty of only Rs. One Lac upon the appellants. Thus, the appellants have failed to demonstrate any justified reason to interfere with the impugned order dt.31.05.2016 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.
Digitally signed by YASHWANT YASHWANT KUMAR
KUMAR Date: 2019.10.31
16:54:04 +0530
Announced in open Court (YASHWANT KUMAR)
on 31st day of October 2019 District & Sessions Judge/FSAT
Patiala House Courts, New Delhi
FSAT No. 41/2016 Page No 12 of 12
K.P. Singh Anr. Vs FSO