K.S. Tiwana, J. - The case of the prosecution is that on 24.2.1982 Chand Ram, Food Inspector accompanied by Dr. Ramesh Kumar and Dharam Chand intercepted Rameshwar respondent while carrying on about 15 kg. cow's milk in a drum for sale. The Food Inspector purchased 660 ml. of milk on payment. The milk was divided into three equal parts and put into three dry and clean bottles. Each bottles was properly stoppred, secured, fastened, wrapped and sealed. One of the samples was sent to the Public Analyst, the other was handed over to Rameshwar respondent and the third was kept in safe custody. The Public Analyst, on analysis found the sample of milk to be adulterated.
2. On the filing of the complaint, the learned Judicial Magistrate First Class, Hansi, summoned Rameshwar respondent. After the recording of the statement of the Food Inspector, Rameshwar respondent was charged under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act. The statement of Chand Ram, Food Inspector and Dr. Rameshwar Kumar were recorded. The respondent denied the case against him.
3. After trial, the learned trial Magistrate acquitted the accused mainly on the ground that there is no mention about the stirring of the milk in the complaint.
4. The State of Haryana feeling dissatisfied with the order of acquittal has come to this court in appeal.
5. The law is well settled that before Milk sample is taken, which is a liquid, is should be stirred and made homogenous. The reasons for this is that the milk which is liquid, contains various constituents in different forms. Some are very thoroughly mixed up in it but sum though, are mixed in it, are lighter and do not have the same specific gravity and weight as the other constituents have. Fat, for example, is one which differs in some ways from the other constituents of the milk. It is lighter in weight and it does not remain mixed up with the remaining liquid for a very long time. If the milk is allowed to stand for some time its fat content rises to the top and accummulates there. If a sample is taken without mixing the milk thoroughly or, in other words, making it homogenous then the fat being at the top, its contents will not be in the same quantity in the lower portions as those are in the upper part. It is for this reason that the Courts have laid down that before taking the sample of milk it has to be made homogenous so that the sample remains representative.
6. In the case in hand, the evidence of both the witnesses is that the sample before it was taken was made homogenous. The complaint does not contain any reference about the stirring of the milk. It was argued before us on the basis of several denied cases by this Court, that if is not mentioned in the complaint that the milk was stirred before the sample was taken, then the accused is entitled to acquittal.
This matter was gone into recently by a Division Bench in Crl. Appeal No. 502-DAB of 1984 (State of Punjab v. Jagan Nath) decided on 30.5.1986 : 1987(1) Recent Criminal Reports 5 , wherein it was held that there is no statutory requirement that such a fact should be mentioned in the complaint, it was further held :-
"There is, therefore, no gainsaying that before a sample of milk is taken by the Food Inspector he must ensure that the milk has been made homogenous. Otherwise the report of the analyst is bound to be misleading regarding the contents of fat and solids not fat. While assessing the value of the report it becomes the duty of the Court to ascertain if the sample of milk has been properly taken by the Food Inspector. The proper sample would only be of the milk made homogenous by stirring. If the Court comes to the conclusion that the milk was not properly stirred and made homogenous it is not bound to rely upon the report of the Public Analyst to base conviction of the milk vendor. To come to a conclusion that the milk was made homogenous when the sample was taken the contents of the complaint have necessarily to be looked into. In case the factum of stirring of the milk is missing in the complaint it is open to the trial Court to entertain doubt on the statements of the Food Inspector and his witnesses in Court in respect thereof.
An analogy can be drawn from private complaint before a Magistrate, as also one made before the police in the cognizable case in the shape of a first information report. If an occurrence takes place, the complaint in such private complaint or in the first information report, as the case may be, may give a narration of the same withholding the names of the eye-witnesses or some other salient facts. As long as the allegations constitute an offence the cognizance of the case cannot be refused by the Court. But, at trial these omissions would assume importance and the proof adduced before the Court regarding the fats so omitted in the First Information Report would be looked with suspicion and the benefit of doubt will become available to the accused. Such a situation will arise not because the mention of those facts was a necessary requirement of the complaint to constitute the offence but because the omission would make the evidence, which is produced to prove these facts, suspect as an after-thought. The omission is not inherently fatal to the prosecution case but the Court while assessing the evidence would certainly be entitled to take the view that evidence of the facts not mentioned in the complaint or the first information report cannot be safely relied upon. By the same reasoning, although it may not be necessary to mention the factum of making the milk homogenous for maintainability of the complaint yet it would be open to the Court not to place implicit reliance on the evidence produced in respect thereof in the Court on the ground that the light of the omission in the complaint this evidence could be possibly be an afterthought. We must hasten to make it clear that the Court is not bound to reject the evidence stirring of the milk simply because this fact is omitted in the complaint. But the view taken by us is that the trial Court cannot be faulted in giving benefit of doubt to the accused if on taking overall view of the evidence it arrives at the conclusion that due to the omission in the complaint it would be hazardous to rely upon the evidence to hold the milk vendor guilty of adultering the milk."
7. The circumstances are to be proved by the complainant. There is no proforma prescribed for the drafting of the complaints. Necessary facts which constitute an offence have to be mentioned in the complaints. If some essential facts or essential requirement which are a pre-requisite before doing an act is not mentioned in a complaint, then the accused in given cases, has the right to say that the prosecution has made an improvement in its case. It is a practice in the State of Punjab and Haryana that the Food Inspectors have got a form of complaint printed. They simply fill in the blanks in accordance with the facts of the cases before filing those in Courts. Such a practice is not healthy as such proformas are not comprehensive to contain all the facts of every conceivable case. It is high time that the Food Inspectors realise that such printed proformas which are deficient in certain aspects should not be used for filing the complaints. Almost in every case, which we have come across, the mention of the stirring of the milk in singularly absent. In many circumstances, as in this case, this fact assumes importance to know whether the Food Inspector has performed his duties appropriately and in accordance with the accepted rules of taking samples. It is very easy for a witness to say a fact at the time of evidence. If this improvement is allowed in every case then a day will come when the Food Inspectors will omit to mention in the complaints how the sample was taken, how and what type of preservative and what quantity of it, was added to the sample. We, therefore, do not feel inclined to grant this latitude to the Food Inspectors to make improvements in the case under the Prevention of Food Adulteration Act as it has been done in this case by mentioning only at evidence stage about the stirring of the milk. On evidence, we find that it is a case of deliberate improvement.
8. For the foregoing reasons, we find that the judgment of the learned trial Magistrate, though somewhat scanty in reasoning, is not incorrect. On the whole it conforms to the law laid down by this Court.
9. Finding no ground for interference, we uphold the order of acquittal and dismiss the appeal.
Appeal dismissed.