Sh. Hardeep Singh Banga vs State on 20 November, 2019

3. The appellants have challenged the impugned order inter alia on the main grounds among others that the Ld. 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 Corporation of City of Nagpur vs Neetam Manikrao Kature & Ors. 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 Food Analyst and Referral Laboratory, Mysore were contradictory as in the Food Analyst report dt. 12.01.2015, the Milk Fat was found to be 6.10% and SNF was found to be 8.76% as against Referral Laboratory report dt. 24.03.2015 wherein milk fat contents was found to be 3.9% and SNF was found to be 10.5%. There was variance of FSAT No. 06/2019 Page No 3 of 16 Sh. Hardeep Singh Bagna & Anr. Vs. State through FSO 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. Ld. ADM failed to appreciate that the FSO, in his crossexamination admitted that the sample was taken in cold weather and further that the steel jug in which the sample was poured by him after cutting the sealed poly packs was provided by the vendor/FBO and that the said jug was not washed /cleaned at the spot by him, as such, adopted incorrect sampling procedure which resulted in unrepresentative sampling. The FSO failed to follow proper sampling procedure as evident from the documents prepared at the spot. The Laboratory of the Food Analyst, Delhi, is not an accredited laboratory as per Section 43 of FSS Act, hence, the said report could have not been relied upon by the Ld. ADM. The appellants herein were neither the manufacturer nor the packer of the sampled commodity, which was manufactured and packed by M/s Nagar Dairy Pvt. Ltd., Village Shakarpur, Distt. Hapur (Ghaziabad) UP. The appellants were entitled to benefit of defence of due diligence under Section 80(B)(2)(a)(b)&(d) of the Food Safety and Standards Act, 2006. The appellantsherein were also entitled to benefit of guarantee as per provision of Section 26(4) of the Act as the sampled commodity was supplied vide purchase order / delivery challan / bill / invoice No. 120211435 dt.28.12.2014 of the appellants by manufacturer and packer i.e. M/s Nagar Dairy Pvt. Ltd, UP (respondent No.5 in the 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 appellant 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. The Ld. Chief PP also argued that no application was filed on behalf of the appellants for examination of the witnesses and Food Analyst. 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 FSAT No. 06/2019 Page No 6 of 16 Sh. Hardeep Singh Bagna & Anr. Vs. State through FSO 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 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 substandard and violated the aforesaid provisions of the FSS Act and Regulations.

20. 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 2.1.5 of 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 FSAT No. 06/2019 Page No 15 of 16 Sh. Hardeep Singh Bagna & Anr. Vs. State through FSO 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 Gerber Method is certified method for determination of fat in 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 of FSS Act prescribes a maximum penalty of Rs.5,00,000/ (Rupees Five Lacs only). However, the Ld.ADM imposed a meager penalty of only Rs.1,00,000/ each upon the appellants herein. Thus, the appellants have failed to demonstrate any justified reason to interfere with the impugned order dt.17.01.2019 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. Digitally signed by YASHWANT YASHWANT KUMAR KUMAR Date: 2019.11.20 17:06:06 +0530 Announced in open Court (YASHWANT KUMAR) on 20th day of November 2019 District & Sessions Judge/FSAT Patiala House Courts, New Delhi FSAT No. 06/2019 Page No 16 of 16 Sh. Hardeep Singh Bagna & Anr. Vs. State through FSO

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