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Madhya Pradesh High Court · body

2001 DIGILAW 590 (MP)

K. B. Dadi v. Food Inspector

2001-08-10

S.S.SARAF

body2001
ORDER 1. This petition under section 482, CrPC has been filed for quashing the criminal proceedings initiated against the petitioner for offence under section 7 read with section 16 of the Prevention of Food Adulteration Act (for short the' Act'). 2. The facts giving rise to this petition are these: The petitioner is the Chairman of Hindusan Lever Limited, Bombay. The said company markets well known products. One of such products is known as 'Top Ramen Noodles' manufactured by Indo Nissin Food Limited, Bangalore. On 25.10.1997, the respondent No. 1, Food Inspector, inspected the shop of respondent No.2 Kewalram and seized a packet of 'Top Ramen Noodles'. Since the respondent No.2 disclosed that the said product was bought from the shop of the respondent No.3 Surendra Kumar Jain, respondent No.3 has also been impleaded as party in the array of accused. Since Hindustan Lever Limited, Bombay are the main distributors of the said product, the petitioner being the Chairman of the said Company has also been impleaded as party in the allay of accused. The said Company under section 17 of the Act has nominated one Shri Anil Kulkarni and the said nomination was accepted by Shri Anil Kulkarni which was communicated to the Local Health Authority, Bhopal, criminal proceedings should have been initiated against Shri Anil Kulkarni for and on behalf of Hindustan Lever Limited. It has, therefore, been alleged that the order initiating proceedings against the petitioner being the Chairman of the Company is not sustainable in law. It has, further, been alleged that though as per the report of the Public Analyst, the said product was found adulterated but subsequently the report of the Central Food Laboratory has been received which shows that the said product was not adulterated and therefore no case at all is made out against any person. 3. Having heard the learned counsel for both the sides and having scrutinised the entire material on record, I am of the considered opinion that this petition deserves to be allowed. As per provisions of section 17 of the Act, if a criminal proceeding is initiated against the Company for an offence under the Act, the nominated person should be made party in the array of accused. The provisions of section 17 of the Act are relevant which run as under: "17. As per provisions of section 17 of the Act, if a criminal proceeding is initiated against the Company for an offence under the Act, the nominated person should be made party in the array of accused. The provisions of section 17 of the Act are relevant which run as under: "17. Offence by companies -- (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 (hereinafter 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 that offence 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 proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence. (2) Any company may, by order in writing, authorise any of its directors or managers (such manager being employed mainly in a managerial or supervisory capacity) to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission by the company of any offence under this Act and may give notice to the Local (Health) Authority, in such form and such manner as may be prescribed, that it has nominated such director as the person responsible, along with the written consent of such director or manager for being so nominated. Explanation -- xxx xxx xxx (3) The person nominated under sub-section (2) shall, until – (i) further notice cancelling such nomination is received from the company by the Local (Health) Authority; or (ii) (iii) (ii) he ceases to be a director or, as the case may be, manager of the company; or (iii) he makes a request in writing to the Local (Health) Authority, under intimation to the company, to cancel the nomination which request shall be complied with by the Local (Health) Authority, whichever is the earliest, continue to be the person responsible: Provided that where such person ceases to be a director or, as the case may be, manager of the company, he shall intimate the fact of such ceases to the Local (Health) Authority: Provided further that where such person makes a request under Clause (iii), the Local (Health) Authority shall not cancel such nomination with effect from a date earlier than the date on which the request is made. (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 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 -- xxx xxx xxx" 4. A perusal of the record reveals that on 11.6.1997 the Company nominated one Anil Kulkarni as per provisions of section 17 of the Act. It is also clear that on 11.6.1997, i.e. the same day, said Shri Anil Kulkarni accepted the above nomination in pursuance of sub-section (2) of section 17 of the Act and rule 12B of the Rules made thereunder. It is also manifest from the record that the said nomination was communicated to the Local Health Authority, Bhopal who acknowledged the receipt of the above nomination for Madhya Pradesh on 30.8.1997. The above facts clearly indicate that the Local Health Authority was already communicated by Hindustan Lever Limited regarding the nomination of Anil Kulkarni under section 17 of the Act. The above facts clearly indicate that the Local Health Authority was already communicated by Hindustan Lever Limited regarding the nomination of Anil Kulkarni under section 17 of the Act. The offence was alleged to have been committed on 25.10.1997 and the complaint was filed by the respondent No. 1 in the competent Court on 20.8.1998. The nomination of Anil Kulkarni was acknowledged by the Local Health Authority, Bhopal on 30.8.1997. 5. The initiation of criminal proceedings against the petitioner for and on behalf of Hindustan Lever Limited was not justified. In any case the criminal proceedings should have been initiated against the nominated person i.e. Anil Kulkarni. The continuance of the criminal proceedings against the petitioner, under the circumstance, would amount to an abuse of the process of the Court. 6. The second contention of Shri Rajendra Singh, learned Senior Advocate for the petitioner is that one of the samples was sent by the learned CJM, Bhopal to the Central Food Laboratory. Photocopy of the report dated 31.12.1998 has been filed in record which shows that on analysis it was found that the sample conformed to the general standard laid down for an article of food under the Prevention of Food Adulteration Act and rules framed thereunder. Shri Robertson, learned Government Advocate for the State-respondent No.1 has contended that he has not possessed the copy of the report of the Central Food Laboratory. 7. It is the settled law that the report of the Public Analyst is superseded by the report of the Central Food Laboratory. In this connection, following observations of the Supreme Court in Calcutta Municipal Corporation v. Pawan Kumar Saraf and another [ (1999) 2 SCC 400 ] in para 13 are relevant: "13. Thus, the legal impact of a certificate of the Director of the Central Food Laboratory is threefold. It annuls or replaces the report of the Public Analyst, it gains finality regarding the quality and standard of the food article involved in the case and it becomes irrefutable so far as the facts stated therein are concerned." 8. Thus, the legal impact of a certificate of the Director of the Central Food Laboratory is threefold. It annuls or replaces the report of the Public Analyst, it gains finality regarding the quality and standard of the food article involved in the case and it becomes irrefutable so far as the facts stated therein are concerned." 8. Since it has been contended by Shri Rajendra Singh, learned Senior Advocate for the petitioner that the report dated 31.12.1998 of the Central Food laboratory has been received which clearly indicates that the sample was found in conformity of the general standards laid down for an article of food under the Act and rules framed thereunder, no offence as alleged is made out against any of the accused. However, since the learned counsel for the respondent No. 1 is not in position to say anything regarding the said report dated 31.12.1998 of the Central Food Laboratory, it is directed that the learned trial Judge shall consider this point after giving opportunity to the present respondents i.e. No.1 Food Inspector, No. 2 Kewalram and No.3 Surendra Kumar Jain. If it is found that the said report dated 31.12.1998 of the Central Food Laboratory has been received, the learned trial Magistrate shall stop proceedings against the respondents and shall not proceed to initiate proceedings against Anil Kulkarni. The respondents are directed to appear before the trial Court on 20th September, 2001 or the date fixed by the trial Court whichever is earlier. 9. In view of above, the petition is allowed. The criminal proceedings initiated against the petitioner are quashed.