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3. The appellants 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 Arvind Kumar Singh and Another. vs. State through, FSO Food Laboratory is not a reliable method for testing milk fat in milk as has been held by the Hon'ble Supreme Court in Corporation 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 it was based upon "Gerber Method". Both the aforesaid reports were contradictory to each other, as in the Food Analyst report dt. 05.02.2016, the Milk Fat was found to be 4.0% and SNF was found to be 7.97% as against Referral Laboratory report dt. 04.05.2016 wherein milk fat contents was found to be 3.6% and SNF was found to be 6.8% and further the cane sugar was found to be positive, which was found to be absent in analysis report of Food Analyst, Delhi. 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 complete variance/diversions in both the said reports. The Ld. ADM acted against the principle of natural justice while passing the impugned order as the Ld. ADM without any cogent reasoning dismissed the application for cross­examination of concerned FSO and Food Analyst, Delhi holding that he was of the opinion that cross­ examination will not serve any purpose for just disposal of the case / complaint. No independent public witness was associated by the FSO Arvind Kumar Singh and Another. vs. State through, 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 Reports 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 doubt. The Gerber 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 appellants 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 appellants, in support of his arguments, has relied upon the judgments in the cases of Corporation of the City of Nagpur (supra); G.K. Upadhyay (supra); State of Himachal Pradesh Vs. Gulzari Lal & Ors. 2014 (1) FAC 141 (HP); State of Gujarat vs. Om Prakash Dhanshriram Pandit 2015(1) FAC 313 (Gujarat); Food Inspector / Food Safety Officer vs. Santosh Sharma 2014(1) FAC 296 (Delhi) and State vs Abdul Jameel 2014(2) FAC 166 (Delhi).

Arvind Kumar Singh and Another. vs. State through, FSO

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. 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 - milk and milk products, published in 2012 has also included the Gerber 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.

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 Arvind Kumar Singh and Another. vs. State through, FSO 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 Gerber 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.