ORDER
B.S. Nehra, J.
1. This appeal by the Union Territory, Chandigarh, is directed against, the judgment dated 14.4 1987 of Shri Krishan Kant Aggarwal, Additional Sessions Judge, Chandigarh, acquitting the respondents of the charge under Section 16(1)(a)(i) read with Section 7(i) of the Prevention of Food Adulteration Act.
2. The prosecution case is that on 16.1.1984. at about 4.45 PM, Shri O.P. Gautam, Food Inspector, went to the shop of the respondent in Sector 8, Chandigarh. Ten kilograms of boiled cow milk was found lying in the kitchen of the shop. The Food Inspector, after disclosing his identity in the presence of DWI Bharat Bhushan and service of notice Exhibit PA in the prescribed proforma upon the respondent, purchased 700 MIs. of boiled cow milk on payment of Rs. 3.50 paise from the respondent. The purchased milk was divided into three equal parts and put into three bottles. The requisite quantity of formalin was added as preservative. The bottles were then stoppered, labelled and sealed in accordance with the rules. One of the sealed bottles was sent to the Public Analyst, Punjab, Chandigarh, who on analysis, opined that the milk solids not fat was 8.1% as against the prescribed standard of 8.5%. There was thus a deficiency of 5% of the minimum prescribed standard. After the receipt of the report of the Public Analyst, complaint Exhibit PE was filed in the Court for prosecution of the respondent On the basis of the statement of the Food Inspector, the respondent was charged under Section 16(1)(a)(i) read with Section 7(i) of the Prevention of Food Adulteraation Act. He pleaded not guilty to the charge and claimed trial. After the conclusion of the prosecution evidence, his statement was recorded under Section 313 of the Code of Criminal Procedure. He stated that the milk in question was lying in a Patila with a thick layer of Malai over it and that the Food Inspector removed the Malai portion on one side and without mixing the milk, took the sample of milk in the jug, which had earlier been washed. Then the Food Inspector washed the bottles and poured the milk in question into bottles. Further, according to him, the milk was kept in the kitchen of the shop for preparing Rasgullas and it was not meant for sale as such nor was it lying at the sale counter. In his defence, he has examined DW1 Bharat Bhushan, who had earlier been eited as prosecution witness but was given up by the Food Inspector, and DW3 Amarjit Singh, who supported his (respondent) version. The court of learned Chief Judicial Magistrate, Chandigarh, accepted the prosecution version and disbelieved the plea of the respondent and as a result sentenced the respondent to rigorous imprisonment for six months and a fine of Rs. 1,000/-. Thereafter, the respondent preferred an appeal against the said judgment of the learned Chief Judicial Magistrate. The learned Additional Sessions Judge, vide his impugned judgment acquitted him of the change.
3. We have heard Shri R. S. Rai, Advocate for the appellant and Shri H. S. Gill, Senior Advocate, for the respondent, and have gone through the record. In our opinion, there is no ground to disturb the finding of acquittal recorded by the learned Additional Sessions Judge.
4. The case of the respondent is that the boiled milk in question was not stirred and mixed to make it homogeneous by the Food Inspector prior to the taking of sample and, therefore, the shortage in milk solids does not reflect that the milk was sub standard. It has been stated by PW1 Shri O. P. Gautam, Food Inspector, that there was a layer of Malai of very thick size on the top of the boiled milk, which was also very hot. It was contended on behalf of the respondent that the statement of the Food Inspector. that he had mixed the Malai in milk by stirring the same should not be attached any weight as it has not been so pleaded by the prosecution in the complaint. Besides, even DW Bharat Bhushan, who had accompanied the Food Inspector to the shop of the respondent at the time of the taking of the sample, has contradicted the Food Inspector on this aspect of the case. Similarly, DW3 Amarjit Singh has also supported the plea of the respondent. In our opinion, there is considerable merit in the plea of the respondent. It is implausible that the thick layer of Malai could have been mixed thoroughly in the milk by stirring the same in such a way that the milk could become homogeneous. Had the Food Ins- pector stirred the milk as is sought to be contended on behalf of the prosecution, this fact would have found mention in the complaint filed against the respondent before the trial Court. The omission on the part of the prosecution to mention this fact in the complaint justifies the finding that the version of the Food Inspector regarding the mixing of the Malai in the milk is an after thought and that the prosecution has attempted to improve its case at a subsequent stage. There is no reason to disbelieve the testimony of DW 1 Bharat Bhushan, who had accompanied the Food Inspector to the shop of the respondent at the time of the taking of the sample that the Food Inspector had kept the thick layer of the Malai aside and had then drawn the milk from the Patila for the purpose of analysis. The Statement of this witness (DWI Bharat Bhushan) has remained urishati ered in the cross-examination.
5. In Darshan Lal v. The State of Punjab, (1980) 7 Cr. L.T 204 it was held that it is a matter of common knowledge that after boiling, the fat in milk necessarily forms a layer on the top on it. In such a situation, if the doctor took the sample of milk after removing the layer of fat or malai aside, it necessarily means that the sample was not a representative sample. Keeping this consideration in view, inter alia, the accused had been acquitted in this case. In State of Haryana v. Ram Dhan, (1983) 10 Cr. L. T. 100 it was noticed that the Food Inspector did state in the trial Court that the milk was stirred before the same was purchased but in the complaint, it was no where mentioned that it was done so. Their Lordships held that it is a matter of common knowledge that cream accumulates on the top of boiled milk and if the milk is not properly, stirred when the sample is taken, it is found to be deficient in essential ingredients. The ratio of these judgments has a direct bearing on the facts of the present case before us. We are, therefore, convinced that the prosecution had failed to prove the charge against the respondent beyond a shadow of reasonable doubt and hence the learned Additional Sessions Judge, was justified in recording the judgment of acquittal. Finding no merit in this appeal the same is dismissed.