STATE DELHI ADMN Vs. NARESH CHAND

JUDGEMENT

(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 vs. Marre 1975(1) FAC 351; Aletius Wilson and Ors vs. Food Inspector and another 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.