Indian Kanoon - Search engine for Indian Law

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 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 Arvind Kumar Singh & Anr. vs. State through, FSO 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 6.4% and SNF was found to be 8.4% as against Referral Laboratory report dt. 04.05.2016 wherein milk fat contents was found to be 5.5% and SNF was found to be 9.78% 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 variance 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 cross­examination will not serve any purpose for just disposal of the case / complaint. No independent public witness was associated by the FSO during the sampling proceedings.

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 Arvind Kumar Singh & Anr. vs. State through, 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.

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 Arvind Kumar Singh & Anr. vs. State through, FSO 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 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.

17. In view of the above facts and circumstances, arguments on behalf of the parties and the material available on reocrd as well as the judgments relied upon by the Ld. Counsel for the appellants as well as the Ld. Chief PP for the State, I am of the considered opinion that the sample food article i.e. "Pasteurized Full Cream Milk" did not conform to the specified standard as laid down in Regulation 1.2.6 read with Regulation 2.1.1:1 FSS (FPS & FA) Regulations. Non­conforming 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. The parameters and standards laid down by the legislatures 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. Having considered the fact that the appellants did not comply with the standards and parameters / rules / regulations and also the report of RFL, which is a final report and also the fact that the appellants filed the application dt.12.06.2017 for cross­examination of Food Analyst and FSO after the receipt of report of RFL, therefore, the Ld. ADM did not deem it fit to allow the appellants' request to cross­examine the concerned FSO and Food Analyst. The Gerber Method is certified method for determination of fat in Arvind Kumar Singh & Anr. vs. State through, FSO milk as per DGHS Manual 2005 and Indian Standard as discussed above. Moreover, 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. Section 51 and 54 of FSS Act prescribe a maximum penalty of Rs.5,00,000/­ (Rupees Five Lacs only) and maximum Rs.1,00,000/­ (Rupees One lac only) respectively. However, the Ld.ADM imposed a penalty of Rs.3,00,000/­ (Rupees Three lacs only) each under Section 51 FSS Act and Rs.1,00,000/­ (Rupees One lac only) each under Section 54 of FSS Act, upon the appellants. The judgments relied upon by the Ld. Counsel for the appellants are distinguishable from the facts and circumstances of the present case. Thus, the appellants have failed to demonstrate any justified reason to interfere with the impugned order dt.04.09.2018 of the Ld. ADM. Accordingly, this appeal is devoid of any merits and the same is dismissed. Copy of this Judgment be sent to the Ld. ADM. Appeal file be consigned to record room.