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R/O F­2 vs Fso Page No. 1 Of 8 on 13 May, 2020

       IN THE COURT OF DINESH KUMAR SHARMA
        DISTRICT & SESSIONS JUDGE / APPELLATE
              TRIBUNAL, PHC, NEW DELHI

In the matter of :
FAST No. 13/2019

Surendra Kumar Gupta
S/o Late Sh. R.D. Gupta
M/s Super Marketing
Shop No. 14/32D
Patparganj Village
Delhi ­ 110 091

R/o F­201, Gali No. 3
Pandav Nagar, Delhi - 110 091
(FBO­cum­Proprietor)                              .....Appellant

Proforma Appellants

1.    Hardeep Singh Banga
      M/s Gujrat Cooperative Milk Marketing Federation Ltd.
      Sales Office­cum­Delhi Depot
      24/1, D Block Institutional Area
      Janakpuri, Delhi - 110 059

      R/o F­201, Gali No. 3
      Pandav Nagar, Delhi - 110 091
      (Nominee of Accused No. 3)

2.    M/s Gujrat Cooperative Milk Marketing Federation Ltd.
      Sales Office­cum­Delhi Depot
      24/1, D Block Institutional Area
FSAT No. 13/2019
Surender Kumar Gupta Vs. FSO                       Page No. 1 of 8
       Janakpuri, Delhi - 110 059

      R/o 31, Vasundha Apartment
      Sector 9, Rohini, Delhi ­ 110 085

      Having Head Office at Amul Dairy Road, Anand ­ 388 001
      (Marketing Company)

3.    K. P. Singh
      S/o Sh. Jee Raj Singh
      M/s Nagar Dairy Pvt. Ltd.
      Village Shakarpur
      PO Babu Garh Cantt.
      Distt. Ghaziabad (UP)

      R/o M/s Nagar Dairy Pvt. Ltd.
      PO Babu Garh Cantt.
      Distt. Ghaziabad (UP)
      (Nominee of Accused No. 5)

4.    M/s Nagar Dairy Pvt. Ltd.
      Village Shakarpur
      PO Babu Garh Cantt.
      Distt. Ghaziabad (UP)
      (Manufacturing Company)

                          Versus
Food Safety Officer
Department of Food Safety
GNCT of Delhi
8th Floor, Mayur Bhawan
Connaught Place
New Delhi ­ 110 001                            .....Respondent
FSAT No. 13/2019
Surender Kumar Gupta Vs. FSO                     Page No. 2 of 8
              Date of filing of appeal     : 29.03.2019
             Date of arguments            : 12.03.2020
             Date of judgment             : 13.05.2020

JUDGMENT

1. Vide this judgment, I propose to dispose of the instant appeal filed u/s 3.3.1 of the Food Safety & Standards Rules, 2011 against the impugned order dated 17.01.2019 passed by the Adjudicating Officer/ADM (East), Delhi, whereby the appellant was held guilty for violating the provision of Section 26 (2) (ii) and Section 27 (1) of the FSS Act, 2006 read with Section 3 (1) (zx) and also Regulation No. 2.1.5 of the Food Safety and Standards (Food Products Standards & Food Additives) Regulations, 2011. The appellant was imposed with a penalty of Rs.1,00,000/­. It is pertinent to mention here that the penalty was also imposed upon the marketing company and the manufacturing company.

2. The appellant, who is the FBO, has challenged the impugned order primarily on the ground that the Adjudicating Officer has not taken into account the material facts and decided the case in violation of the settled law. The basic contention of the appellant is that there are divergent reports of Food Analyst and Referral Food Laboratory (RFL). It has been submitted that FSAT No. 13/2019 Surender Kumar Gupta Vs. FSO Page No. 3 of 8 even otherwise the appellant being only the FBO was entitled to the benefit u/s 80 of the FSS Act.

3. The Department has contested the appeal and has submitted that there is no substance in the appeal filed by the appellant. It has been submitted that the Adjudicating Officer has rightly taken into account the report of the Food Analyst and RFL and has rightly reached to the conclusion that since the appellant has not relied upon any of the reports, he cannot be exonerated.

4. The facts in brief are that on 29.12.2014 at about 04:30 PM, Sh. Ram Pratap Singh, FSO along with Field Assistant Sh. Manohar Lal visited M/s Super Marketing, Shop No. 14/32D, Patparganj Village, Opposite Una Enclave, Delhi­110 091. The FSO expressed his intention of taking a sample of "Pasteurized Full Cream Milk" for analysis, to which the appellant agreed. Since no public witness was agreeable to join the proceedings, Sh. Manohar Lal field assistant was joined in the proceedings. The sample consisted of 4 x 500 ml of "Pasteurized Full Cream Milk" (ready for sale) bearing identical label "Pasteurized Full Cream Milk" was taken out of four sealed poly packs of 500 ml of each and after properly shaking the poly packs, it was cut from one corner of each poly pack and the milk was poured into a clean and dry jug and then mixed properly with another clean and FSAT No. 13/2019 Surender Kumar Gupta Vs. FSO Page No. 4 of 8 dry jug by pouring and re­pouring the milk for several times. The sample was divided into four equal parts and was put into a clean and dry glass bottle and was added with 40 drops of Formalin in each sample bottle with the help of a clean and dry plastic dropper and was shaken well. Each bottle containing the sample was separately packed, fastened and sealed according to the provisions of the FSS Act, 2006. After completing the formalities, the sample was sent to the Food Analyst and the remaining two counterparts of the sample were deposited with the designated officer. The appellant did not opt for sending the fourth counterpart for analysis from an NABL accredited laboratory under Rule 2.4.5 of the Food Safety and Standards Rules, 2011. The Food Analyst after analyses of the sample found the same to be sub­standard. The report of the Food Analyst is reproduced as under:

"Sample is sub­standard because milk solids not fat is less than the prescribed minimum limit of 9.0%."

5. The appellant on being given an opportunity to file an appeal against the report of the Food Analyst, preferred the appeal and, therefore, one counterpart was sent to the RFL. The Director, RFL, Mysore in his Certificate of Analysis bearing No. 50F/FSSA/2015 dated 24.03.2015 opined the sample to be "sub­ FSAT No. 13/2019 Surender Kumar Gupta Vs. FSO Page No. 5 of 8 standard" as defined u/s 3 (1) (zx) of the FSS Act, 2006, as it did not conform to the standards laid down for Full Cream Milk under the provision of the Food Safety and Standards (Food Products Standards & Food Additives) Regulations, 2011 thereof. It was found that milk fat contents were below the minimum standard limit. The Adjudicating Officer rejected the contention of the appellant on the ground that since both the reports indicate that the milk was sub­standard, therefore, the appellant is liable to be held guilty. The Adjudicating Officer also rejected the contention of the appellant that since RFL used Gerber method, which has been held invalid by the Hon'ble Supreme Court, the report of RFL cannot be accepted.

6. I have considered the submissions and perused the record carefully.

7. It is an admitted fact that the Food Analyst in his report found the sample to be sub­standard, as the milk solids not fat (SNF), were less than the minimum prescribed limit of 9.0%. In the sample, the milk solids not fat, was found to be 8.76% against the minimum prescribed limit of 9.0%. It is also an admitted fact that the RFL, Mysore found the milk solids not fat, to be 10.50%, which was above the minimum prescribed limit of 9.0%. However, the RFL, Mysore found the milk fat to be 3.90% FSAT No. 13/2019 Surender Kumar Gupta Vs. FSO Page No. 6 of 8 instead of the minimum prescribed limit of 6.0%.

8. Sh. R.P. Singh, FSO admitted in cross­examination before the Adjudicating Officer that the Food Analyst found the milk fat to be 6.10%. Thus, apparently the reports of the Food Analyst and RFL are contradictory to each other. The Food Analyst in the initial report found the sample to be sub­standard, as milk solids not fat, was less than the prescribed limit. However, subsequently, the RFL, Mysore found the SNF appropriate but found the milk fat to be less.

9. I consider that the Adjudicating Officer in his order did not properly consider the above facts and also rejected the contention of the appellant that the report of RFL, Mysore cannot be accepted, as it used Gerber method which has been held invalid by the Hon'ble Supreme Court. The Adjudicating Officer did not give any substantial reason for rejecting this argument. I, therefore, consider that the Adjudicating Officer needed to pass a reasoned and detailed order in this regard.

10. Therefore, the case is remanded back to the Adjudicating Officer/ADM (East), Delhi to appreciate all the contentions and decide the case as per law. Parties are directed to appear there on 05.06.2020.

11. The appeal stands disposed of in the above terms. Record of the Adjudicating Officer/ADM (East), Delhi along with copy of the judgment be sent back. Thereafter, the file of appeal be consigned to Record Room. DINESH Digitally signed by DINESH KUMAR KUMAR SHARMA Date: 2020.05.13 SHARMA 16:21:23 +0530 Announced through (DINESH KUMAR SHARMA) electronic mode on District & Sessions Judge/ 13.05.2020 Appellate Tribunal PHC, New Delhi FSAT No. 13/2019 Surender Kumar Gupta Vs. FSO Page No. 8 of 8