JUDGMENT : M.B. Shah, J. The petitioner-Managing Director of Maheshwari Mills Co. Ltd. has filed this petition for quashing the process issued by the Metropolitan Magistrate, Court No. VIII, Ahmedabad, in Criminal Complaint No. 27/81 filed by the Octroi Inspector, Ahmedabad Municipal Corporation, Ahmedabad. 2. The opponent No. 1 Octroi Inspector filed the aforesaid complaint before the Metropolitan Magistrate alleging that Maheshwari Mills Company was a limited Company and that the Manager of the said Mills (accused No. 1) through his representative Indravadanbhai Patel (accused No. 3) brought 6 cases containing Yarn-Evenness-Tester Machine within the limits of Ahmedabad Municipal Corporation on 23-9-1981 at about 6-15 p.m. in Ambassador Taxi No. G.R.T. 14 without paying octroi duty to the tune of Rs. 12,650.05 P. and thereby the accused have committed an offence punishable under Section 398 of the Bombay Provincial Municipal Corporation Act, 1949, hereinafter referred to as "the Act". In the said complaint the accused No. 1 was shown as Maheshwari Mills Co. Ltd. through its Manager. The petitioner was shown as accused No. 2 as she was Managing Director of the Company. Accused No. 3 was named as Indravadanbhai Patel, who was Assistant Accountant of the said Mills Co. On the said complaint the learned Metropolitan Magistrate had issued summons to all the accused including the petitioner. 3. The learned advocate appearing on behalf of the petitioner submitted that the Metropolitan Magistrate ought not to have issued any process against the petitioner-accused No. 2 because in the complaint it is nowhere averred by the complainant that the accused No. 2 has committed any offence or that she was connected in any way with the conduct of the business of the Company at the time of the commission of the alleged offence. He relied upon the judgment in the case of Municipal Corporation of Delhi v. Purshotam Dass Jhunjunwala, AIR 1983 Supreme Court 158, and the case of Municipal Corporation of Delhi v. Ram Kishan Rohtagi, AIR 1983 Supreme Court 67. 4. In the case of Ram Kishan (supra) the Supreme Court has held that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. 4. In the case of Ram Kishan (supra) the Supreme Court has held that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 432. In that case the Food Inspector of Municipal Corporation of Delhi had filed a complaint for the offence under the provisions of the Prevention of Food Adulteration Act against the Manager of the Company and the Directors of the Company including the Company also. On the said complaint the process was issued against the accused. The Delhi High Court had quashed the issuance of the process against the Manager and the Directors of the Company which had manufactured ‘Morton Toffees’ which were sold by Shri Madan Lal, who was respondent No. 6 in the said case, at his shop. In that case after considering the averments in the complaint, the Court came to the conclusion that so far as the Manager of the Company was concerned, it could not be reasonably argued that no case was made out against him because from the very nature of his duties it was manifest that he must be in the knowledge about the affairs of the sale and manufacture of the disputed sample. But with regard to the Directors the Court held that there was no evidence or anything to show apart from the presumption drawn by the complainant that there is an act committed by the Directors from which a reasonable inference can be drawn that they could also be vicariously liable. In the case of Purshotam Dass (supra) the Supreme Court was dealing with the complaint filed by the Food Inspector of the Municipal Corporation of Delhi for the alleged offence under the Prevention of Food Adulteration Act. As there were sufficient allegations in the complaint involving the Managing Director and the Directors of the Hindustan Sugar Mills Ltd. which manufactured the toffees in question, the Court had allowed the appeal of the Municipal Corporation of Delhi against the judgment and order of the Delhi High Court which had quashed the proceedings. As there were sufficient allegations in the complaint involving the Managing Director and the Directors of the Hindustan Sugar Mills Ltd. which manufactured the toffees in question, the Court had allowed the appeal of the Municipal Corporation of Delhi against the judgment and order of the Delhi High Court which had quashed the proceedings. 5. Relying upon the aforesaid judgments, the learned advocate appearing on behalf of the petitioner submitted that as the petitioner is a Managing Director, it cannot be said that the petitioner is in any way liable for the offence alleged in the complaint and that there is no allegation in the complaint against the petitioner as to how she has committed the offence. For deciding this contention it would be worthwhile to reproduce Section 401 of the Act which provides as to who should be prosecuted when an offence under the Act is committed by a company or a body corporate or an association of persons and which also raises a presumption as provided therein: "401. Where a person committing an offence under this Act, or any rule, by-law, regulation or standing order is a company, or a body corporate, or an association of persons (whether incorporated or not) or a firm, every director, manager, secretary, agent or other officer or a person concerned with the management thereof, and every partner of the firm shall, unless he proves that the offence was committed without his knowledge or consent, be deemed to be guilty of such offence." (Emphasis supplied.) The language of the Section clearly provides that where an offence punishable under the provisions of the Act is committed by a company or a firm, then every director, manager, secretary and every partner of the firm shall, unless he proves that the offence was committed without his knowledge or consent, be deemed to be guilty of such offence. In view of this clear and unambiguous provision of Section 401, it would be clear that every director of the company which has committed an offence punishable under the Act would be deemed to be guilty of such offence unless he proves that the offence was committed without his knowledge or consent. There is a deeming provision which lays down that every director would be guilty of the offence unless he rebuts the presumption by proving that the offence was committed without his knowledge or consent. There is a deeming provision which lays down that every director would be guilty of the offence unless he rebuts the presumption by proving that the offence was committed without his knowledge or consent. Even with regard to the partnership firm, the Section provides that every partner of the firm shall be deemed to be guilty of such offence unless he proves that the offence was committed without his knowledge or consent. The Section draws a pointed distinction with regard to the agent or other officer or person of the company because for them the Section lays down that at that relevant time, they must be concerned with the management thereof. So far as the agent or other officer or person is concerned, if an allegation is made that they have committed an offence punishable under the provisions of the Act, then the complainant must further prove that at the relevant time they were concerned with the management of the company or the firm and there must be clear averment to that effect in the complaint. But with regard to director, manager and secretary of the company and for the partners of the firm, it is not necessary for the complainant to aver that they were at the relevant time concerned with the management of the company or firm. For them the the Section raises a presumption that they shall be deemed to be guilty of such offence and at the time of trial they are required to rebut the said presumption by proving that the offence was committed without their knowledge or consent. In view of this clear and unambiguous provision of Section 401, it cannot be said by any stretch of imagination that the learned Magistrate ought not to have issued the process against the Managing Director of the Company i.e. against the petitioner. Even in the case of Ram Kishan (supra) the Supreme Court has held that so far as the Manager of the Company is concerned, from the very nature of his duties it can be safely inferred that he would undoubtedly be vicariously liable for the offence. Now, here in this case, with regard to the petitioner who is Managing Director, it can safely be inferred that she would, undoubtedly, be vicariously liable for the alleged offence. Now, here in this case, with regard to the petitioner who is Managing Director, it can safely be inferred that she would, undoubtedly, be vicariously liable for the alleged offence. Further, in view of Section 401 of the Act it is not necessary for the complainant to aver that the petitioner was responsible for the conduct of the Company’s business at the time of commission of the offence because Section 401 itself raises a presumption that every director shall be deemed to be guilty of such offence unless he proves that the offence was committed without his knowledge or consent. 6. The learned Advocate appearing on behalf of the petitioner submitted that while interpreting Section 10 of the Essential Commodities Act and Section 17 of the Prevention of Food Adulteration Act it has been laid down by the Supreme Court and also by this Court that there must be an averment in the complaint when an offence is alleged to have been committed by the Company that the person was responsible to the Company for the conduct of business of the Company at the relevant time. Under Section 10 of the Essential Commodities Act it has been provided that if the person contravening an order under Section 3 is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly. Looking to this provision it is clear that there is a marked distinction between Section 10 of the Essential Commodities Act and Section 401 of the Act. Section 10 in clear terms provides that the person who is prosecuted for the alleged offence must, at the time when contravention was committed, be in charge of and was responsible to the company for the conduct of business of the company. There is no provision in the said Section which lays down that every director of the said company shall be deemed to be guilty of such offence unless he proves to the contrary as provided in the said Section. At this stage it would be worthwhile to reproduce Section 10 of the Essential Commodities Act which reads as under: "10. There is no provision in the said Section which lays down that every director of the said company shall be deemed to be guilty of such offence unless he proves to the contrary as provided in the said Section. At this stage it would be worthwhile to reproduce Section 10 of the Essential Commodities Act which reads as under: "10. (1) If the person contravening an order made under Section 3 is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation: For the purposes of this Section,- (a) "company" means any body corporate, and includes a firm or other association of individuals; and (b) "director" in relation to a firm means a partner in the firm." In Section 10 (1) it has been emphasised by the Legislature that if the offence is committed by the company, then every person who, at the time when the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company shall be guilty. Even in sub-section (2) it has been laid down that when the prosecution proves that the offence has been committed with the consent or connivance or by neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty of that offence. 7. Even in sub-section (2) it has been laid down that when the prosecution proves that the offence has been committed with the consent or connivance or by neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty of that offence. 7. Similarly the relevant portion of Section 17 of the Prevention of Food Adulteration Act reads as under: 17. (1) (1) Where an offence under this Act has been committed by a company. (a) (i) the person, if any, who has been nominated under sub-section (2) to be in charge of, and responsible to, the company for the conduct of the business of the company (hereafter in this Section referred to as the person responsible), or (ii) where no person has been so nominated, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company; and (b) the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proved that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence. xxx xxx xxx (4) Notwithstanding anything contained in the foregoing sub-sections where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, (not being a person nominated under sub-section (2) ) such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation: For the purposes of this Section:- (a) "company" means any body corporate and includes a firm or other association of individuals; (b) "director", in relation to a firm, means a partner in the firm; and (c) "manager", in relation to a company engaged in hotel industry, includes the person in charge of the catering department of any hotel managed or run by it." Under Section 17 (1) it has been provided that the person who has been nominated under sub-section (2) to be in charge of, and responsible to, the company for conduct of the business of the company and where no such person has been nominated, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company shall be deemed to be guilty of the offence. Even in sub-section (4) it is provided that the prosecution is required to prove that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence. So far director, manager, secretary or other officer of the Company, sub-section (4) provides that it must be proved by the prosecution that the offence has been committed with the consent or connivance or neglect of the concerned person, then and then only the said person can be prosecuted. In this set of circumstances, the judgments cited by the learned advocate Shri Desai would be of no assistance. He relied upon the case of Smt. Manibai v. State of Maharashtra reported in AIR 1974 Supreme Court 434, where the Court was dealing with Section 17 (1) of the Prevention of Food Adulteration Act. In this set of circumstances, the judgments cited by the learned advocate Shri Desai would be of no assistance. He relied upon the case of Smt. Manibai v. State of Maharashtra reported in AIR 1974 Supreme Court 434, where the Court was dealing with Section 17 (1) of the Prevention of Food Adulteration Act. There the Court has held that even if appellant Manibai was a partner of that firm or a member of that association of individuals, Manibai would be liable under Section 17 (1) of the Act for the sale which was made by her son Pranjivan only if it was shown that she was in charge of and was responsible for the conduct of the business which was carried on at the shop and as there was no evidence to that effect on the record, the Court held that no criminal liability can be fastened on Manibai under the provisions of the Act. The learned Advocate further relied upon the judgment in the case of State of Madras v. C.V. Parekh, reported in AIR 1971 Supreme Court 447. There the Court was required to consider the provisions of Section 10 of the Essential Commodities Act. In that case one respondent was the Manager and the other respondent was the Managing Director of Micretee Castings (Private) Ltd. and the Court held that in order to justify the conviction of the respondents evidence was needed to show that they knew of the sale or were parties to it and as there was no evidence on the record from which it could be inferred that the two respondents had any knowledge of the sale which was maneuvered by Kamdar and Vallabhdas Thacker, nor there was any evidence to show that they took any part in the negotiations for sale or in the sale itself, therefore, they cannot be convicted. The aforesaid decision, therefore, would not assist the petitioner in any way. 8. The aforesaid decision, therefore, would not assist the petitioner in any way. 8. In view of the foregoing discussion, the contention of the learned advocate for the petitioner that the petitioner, who is the Managing Director, cannot be prosecuted under Section 398 of the Act is without any substance because of the clear and unambiguous language of provision of Section 401 of the Act which lays down that every director, manager, secretary of the company and every partner of the firm shall, unless he proves that the offence was committed without his knowledge or consent, be deemed to be guilty of such offence. 9. The learned advocate for the petitioner further submitted that looking to the nature of the offence the petitioner may be exempted from appearing before the learned Magistrate during the pendency of the proceedings. In my view, this request cannot be granted by this Court at this stage. The petitioner may file such application for exemption before the trial Court and I am sure that the trial Court would consider it favourably according to law. 10. In the result, the miscellaneous Criminal Application filed by the petitioner is rejected. Rule is discharged. Rule discharged.