STATE OF PUNJAB Vs. RAMESH KUMAR

JUDGEMENT

(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 :