State (Delhi Admn.) vs Naresh Chand And Ors. [Along With ...
2007 Latest Caselaw 285 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. Since similar question has arisen in these five appeals, they are being disposed of together.

2. In all above cases, the Food Inspector( in short "the FI") had drawn sample of ice-cream/kulfi from the respondents' shop by taking several sticks/cups/pieces of bricks of ice cream together and putting them in a Patila (a metallic utensil) and allowing them to melt in the Patila. He then stirred the entire mass with the spoon and filled up the melted ice cream into three bottles and added preservative in each bottle at room temperature. The learned Trial Court found that the procedure adopted by the FI for taking samples of the ice cream was defective resulting into the samples not being representative of the material being sold. In the opinion of the learned Trial Court the proper method of taking sample would have been to put sticks/cup/pieces of bricks of ice cream and kulfi directly into the bottle, then allowing it to melt inside the bottle at room temperature and then adding preservative. Learned Trial Court relied up Kwality Restaurant and Ors. v. M.C.D. 1979(2) FAC, 156; Skaate v. Marre 1975(1) FAC 351; Aletius Wilson and Ors. v. Food Inspector and Anr. 1981(1) FAC 183 to conclude that the icecream is sold either in the form of cups, sticks or bricks. Ice-cream is prepared by manufacturers as a homogenized mass and it is ice-cream so long as its is not in a molten state. Once it is in molten state, it is no longer an ice-cream. The sample and analysis has to be of the product as it is sold. The pieces of icecream should have been put directly into the bottles to make them representative samples. It was observed by learned Trial Court that when ice-cream samples were allowed to melt in a metallic pot (Patila) and come to room temperature, part of the fats of the ice cream stick to the surface of the metallic pot and part of the solid matter may settle down, resulting into loss of fats and solid mass and, therefore, result of analysis of such sample would not be representative of ice-cream being sold to the customers.

3. It is argued by learned Counsel for State that the Trial Court wrongly held that the sample was not representative sample since the FI was supposed to homogenize the samples and for homogenization, it was necessary for the FI to allow the samples to melt and then put the samples into bottles. She argued that the Trial Court in this case was erred in holding that the samples were not representative sample.

4. It is undisputed fact that the icecream or kulfi are not sold in molten state and they are sold when they are in the form of a cup or stick or brick at a sub-zero temperature so that they do not loose their form. It is also undisputed that the article which is sold to the customer should confirm to the standards as provided under Food Adulteration Act ( in short "the Act") and the samples should be taken in such a manner that it is representative of the article sold. When icecream is allowed to be melted in a steel or metal container(patila) and is brought at room temperature, the whole mass of the icecream shall not have the same temperature from bottom to top. The top layer of the icecream would come to room temperature and the bottom layer shall be cooler comparatively due to the fact that top layer would be in contact of air and layers in between would not be in touch with air. Once the icecream gets melted, the lighter particles in that mass shall float over and the heavier particles shall have tendency to settle down. Fat being lighter will float at the top surface of the molten icecreame due to law of gravity and the heavier particles shall have tendency to settle down and go down. When such a mass of the melted icecream is stirred, the part of fat will stick to the surface of the container due to the tendency of fat sticking to the surface and the some of the fat would be lost to the 'patila' when sample is taken out. This molten mass of icecream, would, therefore, not be a representative sample of icecream which is sold to the customers. Normally the sticks who are sold to the customers are wrapped in butter paper, which is non sticky type and nothing sticks to it. In the same way, the cups which are prepared also have non sticky surface from inside. It is so, that the part of the icecream may not stick and the icecream may not loose its contents before entering the mouth of the customer. The learned Trial Court rightly held that the proper way of taking samples of the icecream was to put the stick of the icecream or the piece of icecream taken from the brick or the cup of the icecream or the kulfi directly into the sample bottle so that it does not loss any part of its fat contents or solid matter in the process of melting and sticking to the surface of the patila. If the sample of icecream is not taken in proper manner, it would not be a representative character sample and on the basis of analysis of such sample, the respondent could not be convicted. In all above cases, the fat contents of the icecream were found between 5-6 per cent while the minimum fat contents required was 10%. Similarly, the solid material were found between 33-34% while the minimum solid material should have been 36%.

5. Looking into the slight variations in the result of the samples and the minimum standard prescribed under the law, it can be safely said that the sample taken by the FI was not properly taken so as to make it a representative sample in case of icecream/kulfi. The proper way of taking sample is to put directly the part of brick of icecream or cup or stick of icecream/kulfi into the sample bottle and allow the same to come to room temperature and then add preservative so that there is no loss of fat etc. Once loss of fat takes place due to faulty procedure of taking samples, the shopkeeper cannot be convicted. No other adulteration was reported in these cases.

6. In view of my foregoing discussion, I find no force in these appeals. The appeals are hereby dismissed.