Murari Lal vs Delhi Administration
1995 Latest Caselaw 222 Del

JUDGMENT

Anil Dev Singh, J.

(1) This order will dispose of three writ petitions seeking writs in the nature of certiorari to quash the proceedings against the petitioners pending before the trial Magistrates under Section 7/16 of the Prevention of Food Adulteration Act,1954 (for short the "Act").

(2) It will be sufficient to state the facts of one of the petitions as identical points are involved in these writ petitions. Accordingly the facts of writ petition No. 4554 of 1994 are being given below:-

(3) On February 20, 1990 the petitioner is alleged to have sold a sample of Cottage Cheese (Paneer) to Food Inspector Shri Arun Kumar when he visited Shiv Paneer Bhandar situate on Main Road, GE-1 Block Opposite KG-1/376 Vikaspuri,New Delhi. The sample on analysis by the Central Food Laboratory, Mysore, was found to contain Moisture and Milk Fat as per details below: Moisture 56.3% Milk Fat 44.42% on dry weight basis.

(4) According to the report of the Director, Central Food Laboratory the sample of Paneer did not conform to the standard laid down for Paneer under the provisions of the Act and the Rules framed thereunder as the milk fat content was below the minimum specified limit of 50% of the dry matter.

(5) In view of this report prosecution was launched against the petitioner. The Metropolitan Magistrate by a notice dated September 20,1990, issued under Section 251 of the Code of Criminal Procedure, called upon him to show cause why he should not be tried and punished under Section 7/16 of the Act for contravening the provisions of Section 2(ia)(a)(m). Pursuant thereto the petitioner on the same day pleaded not guilty and claimed trial Thereafter the petitioner filed the present writ petition challenging his prosecution on the ground that the standard of milk fat prescribed under rule 5 of the Prevention of Food Adulteration Rules, 1955 (hereinafter called the "Rules") read with paragraph A. 11.02.05 of Appendix B thereto for Paneer or Chhana is unattainable. In the writ petition it is averred that standards or quality of various articles of food are based on research conducted by the scientists. The standards are required to be revised from time to time depending upon the latest research and analysis. It is also stated that at times the result of analysis of food products vary from laboratory to laboratory. The petition goes on to give reasons why the standard prescribed for Paneer from Cow's milk cannot be achieved and details of the parties facing prosecution for selling paneer containing fat below the minimum specified limit of 50% of the dry matter. In this regard it is stated as under: "8. Research done at the National Diary Research Institute (Indian Council of Agricultural Research) has shown that Chhana prepared from cow milk cannot reach the prescribed standard in respect of the fat content. The fat is still less in Chhana or Paneer which is prepared from milk of 'National cow'. 9. A number of samples of Paneer were lifted by the Prevention of Food Adulteration Department from leading Hotels and Halwai Shops but in none of them the fat was up to the prescribed standard. The affected parties are:- 1) Oberoi Intercontinental. 2) Hyatt Regency. 3) Siddharath Hotel. 4) Maurya Sheraton. 5) Holiday Inn. 6) Sweet Corner,Sunder Nagar. 7) Shiv Shankar. 8) Mohd. Shafi. 9) Girdhari Lal. 10) Sohan Lal Lakhera. 11) Gianander Tyagi. 12) Deep Chand and Sons. 13) Punjabi Sweets. 14) Ramesh Paneer Bhandar. 15) Shri Sunder Lal. 10. All the parties mentioned in para 9 above, are facing prosecution for selling Paneer whose fat content is below the prescribed standard".

(6) The petition also avers that the rational Diary Research Institute, Karnal is also of the view that Chhana prepared from cow's milk is not capable of reaching the prescribed standard in so far as fat content is concerned. It is also alleged that number of samples of paneer were lifted by the Food Inspectors of the respondent from hotels and halwai shops but in none of them the fat content was found to be up to the prescribed standard. The Association of Halwais is said to have filed a representation to the Ministry of Food Processing Industries in which it was stated that in none of the samples of Paneer collected from Delhi the far content was up to the prescribed standard. With the arrival of high yielding breed of cows the standard of fat content in paneer requires revision as milk from such cows have low fat content and consequently this accounts for low fat content in paneer as well. This representation was transmitted by the Ministry to the National Dairy Research Institute, Karnal for its views. According to the petitioners the views of the National Dairy Research Institute clearly support their case. It is further alleged that on the basis of the views of the National Dairy Research Institute the Ministry of Food Processing Industry recommended to the Ministry of Health that the standard laid down for Chhana in paragraph A.11.02.05 of Appendix B to the Rules be revised by prescribing the minimum limit of fat as 35% on dry weight basis instead of 50%. It is also averred that by letter dated February 26,193, Ministry of Food Processing Industry asked the Ministry of Health to advise Delhi Administration not to launch prosecutions in cases where fat content in samples of Chhana was less than the prescribed standard.

(7) The other two petitioners are also being prosecuted as samples of paneer obtained from them also did not conform to the standard of milk fat laid down in paragraph A.11.02.05 of Appendix 'B' to the Rules.

(8) It is in this prospective that the petitioners have challenged their prosecution and seek quashing of the proceedings pending before the various Metropolitan Magistrates.

(9) Learned counsel appearing for the petitioners relied upon the letter of National Dairy Research Institute dated November 11,1993 addressed to the Deputy Commissioner (Dairy Products), Ministry of Food Processing Industries, copy whereof was presented in court at the time of arguments. Learned counsel laid emphasis on the following paras of the letter: ....The Pfa standard for chhana was formulated in the year 1955 on the basis of the research work published by Prof. De and Ray (1954). This standard was essentially based on cow milk containing 4.0 to 4.58 fat with a SNE/fat ratio ranging between 1.9 to 2.1. The authors conducted laboratory experiments by taking 500 g. milk in small aluminium degchi (7 1/4" x 3 1/4") on chhana making after boiling the milk on an electric hot plate and used a glass rod with flattened end for stirring. They had recommended that chhana should not contain more than 55% moisture and not less than 50% fat on dry matter basis. However, in this connection, it was mentioned that chhana reaching the city markets from outlying centres of production is received as a 'wet' product usually floating in acidic whey containing high whey solids. This wet product, as such is never used for sweet making. The sweet makers subject it to washing with fresh water to remove whey solids and to pressing to remove the excess moisture before conversion into rasogolla or sandesh. This processes which lead to significant fat loss from channa into waste water were not taken into account for prescribing the Pfa standard. Most modern dairy plants in the Indian cities and towns produce toned milk having 3% fat by the process of recombination. organized dairies have planned to start the production of rasogolla and other sweets as a profitable way of utilizing the surplus milk and unsold recombined milk. It should be possible to introduce the manufacture of chhana based sweets in dairy factories using recombined milk. Homogenization is an integral unit operation for recombined milk preparation. It is well established that use of homogenized recombined milk in chhana making would lead to higher fat loss in whey than the normal milk. It is not possible to make chhana having a minimum of fat on dry matter basis from toned milk. The introduction of indigenous milk products like chhana in city plants can play a significant role in improving the.economy of the dairy industry in general and urban dairies in particular." "...........With the introduction of cross breeding programme, especially with exotic blood of Holstein Friesian breed the average milk fat content in cow milk has been found to range between 3 to 3.5% fat. The Pfa standard for cow milk in many Sales are also fixed at a minimum of 3.5% fat. It will not be posibble to obtain chhana with a minimum of 50% fat on dry matter basis from the above kinds of milk. A survey of the composition of chhana was undertaken by INdri scientists to assess the present status and trade practices associated with the preparation of chhana and chhana based sweets in the country. Desai (1988) collected 30 samples of chhana from six prominent shops of Delhi during the different seasons. The moisture content in chhana samples varied from 66.5 to 71.6% and fat percentage varied from 9.98 to 14.27% on asis-basis. Converting the fat content on dry matter basis, it can be observed that the fat content in chhana on dry matter varied from 35.2 to 43%. Various research workers have reported that buffalo milk is not suitable for chhana making because of its low moisture retention capacity, hard body and greasy and coarse texture. ............The issue of modifying the Pfa standard for chhana has been receiving the attention of scientists of Dairy Technology Division at this institute for many years. The matter has now been examined in its entirety. Inter quantities view of the scientific evidence on Chemical composition of chhana gathered over the years the Government of India may well be advised at the stage to reduce the minimum fat in chhana to 35% on dry matter basis. This revision will certainly eliminate the undue hardships being" faced by the traders and sweet makers due to litigation in the courts pending in the different parts of India. We recommend that the Pfa standard laid down for chhana in item No.A.11.02.05 in respect of fat be modified to a minimum of 35,% fat on dry matter basis, instead of 50% prevailing now, while retaining the provision of moisture content of not more than 70%".

(10) Learned counsel for the petitioners on the basis of the aforesaid letter contended that milk fat content of Paneer and Channa should be 35% of the dry matter and the respondent should be asked to prescribe that standard. Learned counsel for the respondent however submitted that the standard prescribed in paragraph A.11.02.05 in Appendix B to the Rules for Chhana and Paneer are attainable. He also submitted that the whole premise of the argument of the learned counsel for the petitioner proceeds on the footing that the standard of fat content is not attainable if only cow's milk is used for preparation of Chhana and Paneer. According to the learned counsel paragraph No.A.11.02.05 permits the said product to be obtained from cow or buffalo milk or a combination of two and even use of milk solids is permitted. His submission is that the manufacturers of Paneer and chhana can mix cow milk with buffalo milk to reach the requisite standard fixed by paragraph A. 11.02.05 of Appendix B to the Rules. Learned counsel however does not admit that by using cow's milk the standard of fat laid down for Paneer or Channa is unattainable. He submitted that even by reducing the moisture the milk fat content can be raised to 50% of the dry matter.

(11) I have considered the submissions of the learned counsel for the parties.

(12) The definition of the word "adulterated" is given in Section 2(ia) of the Act. It covers all articles of food. Sub clauses (a) to (m) thereof cover the cases where an article of food will be deemed to be adulterated. Under sub clause (m), with which we are concerned, an article of food will be deemed to be adulterated if the quality or purity of the article falls below the prescribed standard or if its constituents are present in quantities not within the prescribed limits of variability. Rule 5 prescribes the standards and limits for certain articles of food by specifying the same in Appendix B to the Rules. In the present petition we are concerned with paragraph No.A..11.02.05 of Appendix B to the Rules which reads as under: A.11.02.05 - Chhana or Paneer means the product obtained from the cow or buffalo milk or a combination thereof by precipitation with sour milk, lactic acid or citric acid. It shall not contain more than 70.0 per cent moisture, and the milk fat content shall not be less than 50.0 per cent of the dry matter. Milk solids may also be used in preparation of this product".

(13) According to the aforesaid item Chhana or Paneer obtained from cow or buffalo milk or a combination thereof must not have more than 70 per cent moisture and the milk fat should not be less than 50% of the dry matter.

(14) Therefore in order to obtain the standard of milk fat content in Channa or Paneer,the manufacturers of those products can use buffalo milk or cow milk or a combination thereof and can augment the milk fat by other methods. It is not denied by the learned counsel for the petitioners that by adding buffalo milk to cow milk or adding to it a product thereof rich in milk fat or by reducing water content from the product the standard prescribed for the said items can be achieved. His contention however was that by merely using cow's milk the standards are unattainable. Assuming this to be so, the standards prescribed can still be achieved by combination of buffalo milk with cow milk or by the aforesaid method.

(15) It may be pointed out that the representation Annexure C dated April 16, 1993 by the Association of Namkeen, Milk and Tea Vendors Association urged the Ministry of Food Processing Industry to modify the stand- ard of fat prescribed for products prepared from milk as the standard was unattainable. Basically the representation highlighted that cow's milk which was available was having less percentage of fat and therefore its derivatives were also having a low percentage of fat. The Indian Dairy Research Institute to whom a reference pursuant to the aforesaid representation was made considered the question of standard of fat in Chhana prepared from cow's milk. In fact it did not consider the standard of fat for paneer as would be evident from the following observations in the said letter. "AT this stage, the Pfa standards for chhana and paneer are common. The methods of manufacture Chemical composition, textural properties and end use of the two products are entirely different. Chhana and paneer are, therefore, two different milk products. There is a need for prescribing separate Pfa standards for chhana and paneer."

(16) Besides the National Dairy research Institute did not opine that the standard laid down in the Rules was un achieveable even by mixing the cow milk with the buffalo milk for preparation of paneer or Chhana. In the case of State of Maharashtra Vs. Baburao Ravaji Mharular and others , the Supreme Court rejected the contention that the standard of 10% milk fat in ice cream was unattainable. In that case a sample of ice cream was purchased from the shop of the respondent. According to the report of the public analyst the sample of ice cream contained 5.95% of milk fat as against the minimum of 10% prescribed by paragraph A.11.02.08 of Appendix B to the Rules. The Chief Judicial Magistrate Kolhapur was of the opinion that it was impossible to attain the standard prescribed by the said paragraph for ice cream, as the standard of milk fat prescribed for buffalo milk was 5%. The Magistrate was, therefore, of the view that rule 5 read with paragraph A.11.02.08 of Appendix B was impossible of compliance. On appeal by the State, the Bombay High Court dismissed the appeal in liming. But the State's appeal to the Supreme Court was allowed. While allowing the appeal the Supreme Court observed that even though the standard of milk fat in buffalo milk was 5% it should not render it impossible for ice cream to contain a minimum percentage of 10% milk fat. It was noticed that there were several ways of achieving higher percentage of milk fat in ice cream. In this regard the Supreme Court observed as under: "We do not have the slightest hesitation in allowing the appeal. We are unable to appreciate why the circumstance that the standard of milk fat for buffalo milk is 5% should render it impossible for ice cream to contain a minimum percentage of 10% milk fat. There are several ways by which the higher percentage of milk fat in ice cream can be attained. The most elementary method is to heat the milk sufficiently to reduce the percentage of water and increase the percentage of milk fat. Another obvious method is to add cream containing a high percentage of milk fat separately to the milk before making ice cream out of it. We do not have to advise caterers and restaurateurs about how ice cream containing the minimum prescribed percentage of milk fat should be prepared".

(17) Thus as seen from the above, it is not impossible to increase the percentage of milk fat in a milk product like ice cream. Similarly higher percentage of milk fat in paneer or other milk products can be achieved by different methods.

(18) The argument of the learned counsel for the petitioners that the National Dairy Research Institute has recommended modification of the standards prescribed in regard to chhana, cannot be a ground to ignore the Rules. Till the standard prescribed in the Rules stand the courts are duty bound to enforce the same. The courts cannot ignore the standards prescribed by the Rules merely on the ground that some administrative department holds the view that standard laid down in the Rules needs to be modified. In Jaswant Ram Vs. The State of Punjab 1979 (1) F.A.C. 16 the Punjab & Haryana High Court being confronted with a similar situation held as under: "WHILE in the present case, the standard for Khoa is prescribed, though on the representation of the businessmen dealing in Khoa, the Government is considering the matter as to whether there is any cause for increasing the permitted moisture content in Khoa and meanwhile it has issued a direction that till the final decision is taken on the said representation no prosecution be launched in cases where moisture content does not exceed 35 percent. The Courts below, in my opinion, rightly were of the view that till the standard prescribed in the rules stands unamended they would not be in a position to ignore the rules by according preference to the Government instructions over the rules. Hence I repel the contention advanced by the learned counsel."

(19) In the circumstances it is difficult to hold that the standards prescribed in item A.11.02.05 cannot be conformed to by the petitioners.

(20) Having regard to the above discussion the writ petitions, are dismissed. But there will be no order as to costs.