Punjab-Haryana High Court
State Of Punjab vs Ramesh Kumar on 22 January, 1992
Equivalent citations: (1992)101PLR508
JUDGMENT A.L. Bahri, J.
1. The question referred to the Full Bench is whether a mere omission to mention in the complaint the fact that the commodity, say milk in this case, was stirred before taking the sample shall per se be fatal to the prosecution of an accused under the Prevention of Food Adulteration Act, 1954 ?
2. At the outset, it may be stated that neither the provisions of Prevention of Food Adulteration Act nor the Rules framed thereunder prescribe for stirring of the milk or such like products before sample there from is to be taken. However, the judicial pronouncements on the subject do not leave any manner of doubt on the importance of factum of stirring of the milk or such like products to make them homogeneous before taking sample for analysis under the provisions of the Act. Three Division Bench cases and several Single Bench cases of this Court have been referred to on the subject on behalf of the accused, who is respondent in this case, whereas the Deputy Advocate General appearing on behalf of the appellant, State of Punjab has referred to two decisions of the Supreme Court with respect to the matters which require to be incorporated in the complaint, calling upon the Court to take action against the accused for commission of offences. It will be useful to refer to the definition of complaint given in Section 2 clause (d) of the Code, of Criminal Procedure, which reads as under :-
"Complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code that some person whether known or unknown, has committed an offence, but does not include a police report.
Explanation :-A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer before whom such report is made shall be deemed to be a complainant."
3. Reference may also be made to Section 190 of the Code of Criminal Procedure, which authorises the Magistrate to take cognizance of the complaint :-
"190 (1) Subject to the provisions of this Chapter, any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence ;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try."
It may be stated that no particular form is prescribed for a criminal complaint to be filed in the Court. However, the allegations contained in a complaint must, prima facie, disclose the commission of an offence and the complaint must be filed with a view for taking action under the Code. The facts, which are required to be mentioned in the complaint must indicate commission of an offence It is not expected of the complainant to categories the elements of the offence sought to be charged against the accused in the complaint. A case relating to the provisions of Essential Supplies (Temporary Powers) Act, was under the consideration of the Supreme Court in Bhagwati Saran and Anr. v. The State of Uttar Pradesh A. I. R. 1961 S. C. 928, Section 11 of the aforesaid Act relating to powers of the Court to take cognizance of offences on a report in writing of the facts constituting such offence. It was urged before the Supreme Court that certain details of facts were required to be mentioned in the complaint to enable the Court to take cognizance of commission of offence. The High Court had rejected the contention and the Supreme Court approved the decision. In para 17 of the judgment, it was observed as under :-
"It is to be noticed that the report is required to contain only a "statement of facts constituting the offence' and its function is not to serve as a charge sheet against the accused."
It was further observed that the details which would be necessary to be proved to bring home the guilt to the accused and which comprised the several matters (enumerated in the judgment earlier) will be details, which would emerge at a later stage when after notice to the accused a charge is framed against them and of course at the stage of trial. They would all be matters of evidence.---------"
4. The Supreme Court in Bhimappa Bassappa Bhu Sanna v. Laxman Shivarayappa Samagouda and Ors. A. I. R. 1970 S. C. 1153, dealt with the scope of 'complaint' as defined under the Code of Criminal Procedure. In para 11 of the judgment, it was observed as under :
"The word 'complaint' has a wide meaning since it includes even an oral allegation. It may, therefore, be assumed that no form is prescribed which the complaint must take. It may only be said that there must bean allegation which prima facie discloses the commission of an offence with the necessary facts for the Magistrate to take action. Section 190(1)(a) makes it necessary that the alleged facts must disclose the commission of an offence."
5. The three cases of Division Bench particularly relating to Prevention of Food Adulteration Act need to be noticed, as they directly or indirectly deal with the question referred to above.
6. In State of Haryana v. Ram Dhan, (1983) 10 Cr. L. T. 100, the matter was disposed of with the following observations:-
"The learned trial Magistrate gave a finding of fact that the milk was not stirred before the same was purchased from the respondent. On this point the Food Inspector did state in the trial Court that the milk was stirred before the same was purchased but in the complaint, Exhibit P. C. it is nowhere mentioned that it was done so. Dr. V. K. Malhotra is also silent on this point. It is a matter of common knowledge that cream accummulates on the top of boiled milk and if the milk is not property stirred when the sample is taken, it is bound to be deficient in essential ingredients. In this view of the matter, the judgment of the acquittal passed by the trial Magistrate is inexceptionable. We, therefore, see no force in this appeal and dismiss the same."
In the above case though it was not specifically held as a question of law that the fact of stirring the sample of milk was required to be mentioned in the complaint, however, omission of this fact in the complaint was taken into consideration while appreciating the evidence of the Food Inspector given in Court and the effect of non-stirring of the milk was taken into consideration that it was a matter of common knowledge that the cream accumulates on the top of boiled milk and it would be deficient in essential ingredients.
7. In State of Punjab v. Jagan Nath (1986) 13 Cr. L. T. 174, after referring to the provisions of Section 2(d) and Section 190 of the Code of Criminal Procedure as well as Section 2(ia)(m) and Section 7 of the Prevention of Food Adulteration Act, it was observed as under :-
"Thus, the essential ingredients of a complaint in a case of adulterated milk are that the milk was for sale, that its sample was taken by the Food Inspector which was got anayled and that the sample was found adulterated. There is no provision in the Act or the Rules prescribing method of taking sample nor there is any statutory requirement of making the milk homogeneous. In these circumstances, the omission of the factum of making the milk homogeneous in the complaint is not fatal to the admissibility of the complaint. When a complaint is filed by the Food Inspector omitting this fact the Magistrate evidently cannot refuse taking cognizance of the offence. Quite clearly such omission does not affect the maintainability of the complaint."
8. The following observations of the Supreme Court in Food Inspector, Municipal Corporation, Baroda v. Madanlal Ramlal Sharma A. I. R. 1973 S.C. 176, were also noticed :-
"We are conscious of the fact that in milk and milk preparations including curd it is distinctly possible that the fat settles on the top and in order to find out whether the milk or its preparations such as curd has prescribed content, the sample must be homogeneous and representative so that the analysis can furnish reliable proof of nature and content of the articles of food under analysis."
The effect of omission of this important matter in the complaint, or the First Information Report was taken into consideration and it was observed as under : -
"But at trial these omissions would assume importance and the proof adduced before the Court regarding the fact 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 those facts, suspects 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 in the first information report cannot be said to relied upon. By the same reasoning, although it may not be necessary to mention the factum of making the milk homogeneous 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 in the light of the omission in the complaint this evidence could possibly be an after thought. We must hasten to make it clear that the Court is not bound to reject the evidence of stirring of milk simply because this fact is omitted in the complaint.
9. The third case of the Division Bench in the line is State of Haryana v. Rameshwar (1987-1)91 P. L. R. 108, Case of Jagan Nath (referred to above) was referred to. The observations made in Jagun Nath's case were relied upon in extehso. In para 7 of the judgment, it was observed as under:-
"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 requirements, which are as pre-requisite before doing an act, is not mentioned in a complaint, then the accused, in given cases, has the right to say that prosecution has made an improvement in its case."
It was further observed :-
"It is high time that the Food Inspector 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 is singulary 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 such a fact at the time of evidence. If the improvement is allowed, in every case then 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 see inclined to grant this latitude to the Food Inspectors to make improvement in the case under the Prevention of Food Adulteration Act as it has been done in the case by mentioning only at evidence stage about the stirring of the milk."
10. The other Single Bench cases, referred to during arguments, are the following : -
Tara Chand v. State of Haryana, (1985-1) 87 P. L. R. 186; Gulshan v. State of Haryana, 1986 (2) R C. R. 49; Jai Bhagwan v. State of Haryana, (1989)16 Cr. L T. 207; Har Lal v. State of Haryana, (1987) 14 Cr. L.T.425; Kewal Krishan v. State of Punjab, 1989 (1) R. C. R 1; Sant Ram v. State of Haryana, 1990 (1) R. C. R. 2.
11. It may be stated that Jagan Nath's case (supra) was referred to in some of the cases and while appreciating the oral evidence, the omission of the fact of stirring of milk in the complaint' was taken into consideration while deciding the case. In particular reference is made to the decision.
12. In Jai Bhagwan's case, referred to above, where the omission to mention that the milk was stirred in the memorandum prepared on the spot was taken into consideration and the following observations were made in para 3 of the judgment:-
"Exhibit PC the spot memo is another piece of evidence which could help in the matter. This memo is prepared at the spot and detail of taking sample is provided therein But if we refer to the report evidence taken in course of sampling of that memo, it no where mentions that he product or skimmed milk-was stirred or milk to make it homogeneous. Thus, there is no evidence whatsoever on the record that the milk with the petitioner was made homogeneous. Mention in the complaint by itself in the absence of evidence is of no value."
In Sant Ram's case (supra), while referring to the case of Japan Nath it was observed as under :-
"The importance of stirring the milk is well known It is an acknowedged fact that if milk is not stirred properly, accumu late at the top. At the time of the taking of sample, stirring of the milk makes it homogeneous and whichever part the milk is then taken is representative of the bulk. Though non-mentioning of such a fact in the complaint is not fatal to maintainability of the complaint but this fact tells on the credibility of evident of the Food Inspector even though he may assert at the trial that he did stir the milk."
13. We have given due consideration to the respective arguments addressed by counsel for both the parties and are of the firm opinion that the view expressed in Jagan Nath's case is correct that the law does not require mentioning of the fact of stirring of the milk in the complaint to enable the court to take cognizance of the offence.
14. If the sample of milk has been found to be not in accordant with the standard prescribed, it would be covered under the definition of 'adulterated', as defined under Section 2(i)(a) of the Act If the facts alleged in the complaint show that the sample was purchased from the accused, which was found on analysis to be not in accordant with the prescribed standard and a prayer for taking action against the accused for commission of the offence i.e. for sale of adulterated milk, under Section 7 read with section 16 of the Act is made the Court could take cognizance of such a complaint even though the fact that "milk was stirred before sample was taken" is not mentioned in 1 the complaint.
15. It is entirely a matter of appreciation of evidence as to whether-evidence produced by the complainant at the trial on the point of stirring of milk before purchase of the sample is to be accepted or not on account of the omission of this fact in the spot memo or in the complaint, would depend upon the facts and circumstances of each case. The complaint, or first information report or report submitted under Section 173 of the Code of Criminal Procedure or the memo of taking sample prepared on the spot can best be used as previous statements of the witnesses with which witnesses could be confronted for contradictions with the facts mentioned therein or omission of material facts.
16. The question referred to the Full Bench is, therefore, answered in the negative.
17. The case would be listed for decision according to law, before the Division Bench.
A.P. Chowdhri, J.
18. I agree. I have appended a note of my own.
J.B. Garg, J.
A.P. Chowdhri, J.
19. I agree with the conclusion of my brother A. L. Bahri, J. but I would like to add a few lines of my own.
20. There can be no doubt or debate that as an abstract proposition there is no requirement of the fact that milk or some of its products, like curd, had been stirred before taking the sample being mentioned in the complaint. It follows that omission to mention such a fact cannot be per se fatal to the prosecution. The other question is whether in fact the milk was stirred in order to make it homogeneous at the time of taking the sample. The answer to this question will naturally depend upon an evaluation of the evidence. The two propositions, namely, the mention of the stirring of milk etc. at the time of taking sample in the complaint on the one hand and the fact whether milk was stirred before taking the sample on the other hand are two entirely distinct things and one should not be confused with the other. There are certain observations in some of the authorities referred to by my learned brother, which give the impression to an unway reader that the mention of the fact of stirring must necessarily be mentioned in the complaint itself. We have come to a categorical conclusion that there is no such requirement of law. It will naturally depend on the facts of each case whether the stirring of milk etc. at the time of taking sample is established as a fact in a particular case or not. It may also be mentioned that having regard to the scheme of the Prevention of Food Adulteration Act, a complaint is drawn up only on receipt of the result of the sample from the Public Analyst." It follows that a complaint is not a contemporaneously prepared document at the time of taking the sample and no undue importance can be given to the non-mention of the fact of stirring in the complaint even while evaluating the evidence of the prosecution that point.