PRITPAL SINGH, J. - (1.) THESE are ten State appeals against acquittal (Criminal Appeals Nos. 520-DBA and 672-DBA of 1984, 286-DBA, 353-DBA, 414-DBA, 417-DBA, 418-DBA, 422-DBA, 431-DBA and 473-DBA of 1985). The common point for determination in these appeals is whether a milk vendor, whose sample of milk was found adulterated on analysis, can be acquitted of the charge under Section 7, read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act), on the ground that in the complaint filed by the Food Inspector it was not mentioned that the milk was made homogeneous, by stirring, before the sample was taken. In all the cases from which these appeals have arisen this is the main ground, if not the sole ground, for acquittal of the concerned milk vendor.
(2.) AT the very threshold an objection has been taken by the learned Counsel for the respondents, that the complaints, having been filed by the Food Inspector, the State of Punjab is not competent to file the appeals against acquittal. This objection has no merit because the point has been set at rest by the Apex Court of this country in Khem Raj v. State of Madhya Pradesh, AIR 1976 SC 173. An appeal against acquittal is filed under Section 378 of the Code of Criminal Procedure (hereinafter referred to as the Code). The provision of this section are pari materia with the provisions of Section 417 of the 1898 Code, before it was amended in 1973, on all essential features. The Supreme Court while considering the scope of Section 417, held that sub-section (1), (which is similar to sub-section (1) of section 378 of the amended Code), is in general terms and would take in its purview all types of cases since the expression used in the sub-section is "in any case". The Hon'ble Judges observed :- "We do not see any limitation on the power of the State Government to direct institution of appeal with regard to any particular type of cases. Sub-section (1) of Section 417 being in general term is as such of wider amplitude, sub-section (2) adversely uses the word "also" when power is given to the Central Government in addition to direct the public prosecutor to appeal." The Supreme Court in an earlier judgment in Akalu Ahir and others v. Ramdeo Ram, AIR 1973 SC 2145, had taken a similar view and it was observed as follows :- "The Code of Criminal Procedure 1872 by section 272 permitted the Government to file an appeal from acquittal and this was repeated in Section 417 of the Code of Criminal Procedure, 1882 and again in 1898. The object of limiting the right of appeal against the order of acquittal to the State Government was to ensure that such appeals are filed only when there has been miscarriage of justice and not when inspired by vindictiveness. A private party had, therefore, no right of appeal. The aggrieved party could, however, move the authorities concerned to consider the question of presenting an appeal against acquittal. This indicates that punishment for offence is normally the responsibility of the State as the guardian of law and order. Thus, Section 417, Cr.P.C before its amendment by Act 26 of 1955 empowered only the State Government to direct the Public Prosecutor to present an appeal from an order of acquittal. In 1955, however, this section was amended and it was provided, inter alia, that where an order of acquittal is passed in a case instituted upon complaint the complainant may present an appeal provided that the High Court on his application grants him special leave to do so. Even in cases when the complainant has a right to present an appeal against acquittal his failure in securing special leave would under Section 417(6) bar the State Government also from appealing. This reflects the Parliament's anxiety not to expose the orders of acquittal to plurality of appeals by preserving to the State as guardian of law and order, a distinct right of appeal wholly unaffected by the result of the complainant's right to appeal." In view of these judgments of the Supreme Court, it is now beyond controversy that the State Government is competent to file appeals against acquittal in all cases. We have, therefore, no hesitation in upholding the locus standi of the State of Punjab to file these appeals. Reverting to the question posed for determination in these cases, it may be mentioned that this question has already been answered in the affirmative by two Division Bench judgments of this Court. In State of Haryana v. Ram Dhan, Criminal Law Times, 100; 1983 : 1983(1) Recent Criminal Reports 56 the Food inspector did State in the trial Court that the milk was stirred before the sample was purchased but in the complaint this fact was nowhere mentioned. In these circumstances the judgment of acquittal passed by the trial Court was affirmed. In State of Punjab v. Inder Singh, 1984(1) F.A.C. 166, the Division Bench observed : "The learned Counsel also submitted that the plea that the milk had been stirred before the sample was obtained does not find any mention in the complaint. The Food Inspector at the stage of the trial did state that the milk was stirred but in view of the submission made by the learned defence counsel we deem fit and proper to give benefit of doubt to the respondent on this point." Write these observations, the judgment of acquittal rendered by the trial Court was affirmed.
(3.) ON a careful consideration of the matter we find no reason to differ with this view. We may, however, make it clear that this view is not based on the violation of any statutory requirement, but rests on the rule of prudence in the context of the appraisal of evidence. In the Act, the definition of the term "complaint" has not been given nor any preforma of the complaint has been provided. We have, therefore, to fall back upon the definition of this term in Section 2(d) of the Code, which reads as under :- "2(d). '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." x x x x x x x x x Held may also be obtained from the provisions of Section 190(1)(a) of the Code, which is reproduced below :- "190. Cognizance of offences by Magistrates. - (1) Subject to the provisions of this Chapter, any Magistrate of the first class, 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 fact which constitute such offence; x x x x x x x x x A combined reading of these provisions indicates that a criminal complaint is required to contain only those facts which constitute the alleged offence. In the light of this definition we have to consider as to what are the facts which constitute the offence of adulteration of milk envisaged by the provisions of the Act. According to Section 7 of the Act, no person can sell any adultered food. The adulteration of milk falls under Section 2(ia)(m) of the Act which reads as follows :- "2(ia) - 'adulterated' - an article of food shall be deemed to be adulterated - (m) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health : x x x x x x x x x" According to this provision, the milk meant for sale must adhere to the standard prescribed in rule A. 11.01.11 of Appendix B to the Prevention of Food Adulteration Rules, 1955. This rule provides that buffalo's milk must contain atleast 6% of milk fat and 9% of mill solids not fat in the State of Punjab. Similarly, the minimum requirement of milk fat and milk solids not fat in cow's-milk is 4% and 8.5%. A Food Inspector is empowered under Section 10 of the Act to take sample of any article of food from any person selling such articles. He is authorised to get the same analysed from the Public Analyst under Section 11 of the Act. The Public Analyst is thereafter required under Section 13 of the Act to analyse the sample and then to deliver his report to the Local Health Authority. If the sample has been found adulterated on analysis, the Food Inspector is authorised to file a complaint against the vendor under Section 7 read with section 16 of the Act. Thus, the essential ingredients of a complaint in the case of adulterated milk are that the milk was for sale, that its sample was taken by the Food Inspector which was got analysed 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 appellant 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.;