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Rajasthan High Court · body

2004 DIGILAW 577 (RAJ)

Sita Ram v. State

2004-04-13

N.N.MATHUR

body2004
JUDGMENT 1. - By way of instant petition u/s. 482 of the Code of Criminal Procedure, the petitioners seek to quash the order dated 13.11.2000 passed, by Chief Judicial Magistrate, Hanumangarh in Criminal Case No. 518/92 taking cognizance against the petitioners for offence u/s. 7/16 of the Prevention of Food Adulteration Act. 2. Briefly stated the facts of the case are that the Food Inspector visited M/s. Shakti Flour Mills, Hanumangarh on 28.9.1992 and purchased a sample of flour after giving a requisite notice under the Rules. The Public Analyst opined that the sample did not contain the prescribed standard. The Food Inspector collected information from the Commercial Taxation Officer, Hanumangarh with respect to the status of M/s. Shakti Flour Mills, Hanumangarh and on the basis of the information received, considering the petitioners as partners of M/s. Shakti Flour Mills filed a complaint against them for offence under the Prevention of Food Adulteration Act. 3. It is submitted by learned counsel that in the complaint it is not alleged that the petitioners were incharge of and responsible to the conduct of the business of M/s. Shakti Flour Mills, Hanumangarh. It is contended that the charges could not be framed against them. The learned counsel has placed reliance on a decision of this Court in Gopi Lal v. State of Rajasthan reported in 1999 RCC page 662. It is held therein that requisite allegation has to be made in the complaint as to who was the person nominated for a particular person incharge of and responsible to the company for conduct of the business of the company and it is only when there is such an allegation that a person can be prosecuted and punished, and in absence of any such allegation no prosecution can be launched. In order to appreciate the contention, it would be convenient to read Section 17 of the Food Adulteration Act, which reads as follows : "17. In order to appreciate the contention, it would be convenient to read Section 17 of the Food Adulteration Act, which reads as follows : "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 incharge 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 consider 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 in such manner as may be prescribed, that it has nominated such director or manager as the person responsible, along with the written consent of such director or manager for being so nominated. Explanation.-Where a company has different establishment, or branches or different units in any establishment or branch, different persons may be nominated under this sub-section in relation to different establishments or branches or units and the person nominated in relation to any establishment, branch, or unit shall be deemed to be the person responsible in respect of such establishment, branch or unit. (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) 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 were such person ceases to be a director or, as the case may be, manager of the company, he shall intimate the fact of such cesser to the Local (Health) Authority : Provided further that where such person makes a request u/Cl. (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 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 : (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." 4. A reading of the Section makes it clear that besides the company, the persons who at the time when the offence was committed was in charge of and responsible to the conduct of the business of the company are liable to be prosecuted and convicted whenever offence is committed under the Prevention of Food Adulteration Act by a company. A reading of the Section makes it clear that besides the company, the persons who at the time when the offence was committed was in charge of and responsible to the conduct of the business of the company are liable to be prosecuted and convicted whenever offence is committed under the Prevention of Food Adulteration Act by a company. Under sub-section (2), a company may authorise any of its Director or Manager, in the case of partnership firm to one or more partners to exercise such powers and may give notice to the Local Health Authority that it has nominated such Director or Manager, partner in the case of firm, as the person responsible alongwith consent of such Director or Manager, partner for being so nominated. 5. In the instant case, there is nothing to show that M/s. Shakti Flour Mills, Hanumangarh had nominated any of the petitioners as the person incharge of and responsible to the conduct of the business and that an intimation was sent to the Local Health Authority to that effect. 6. Consequently, the petition is allowed, the proceedings against the petitioners being Criminal Case No. 518/92 pending in the Court of the Chief Judicial Magistrate, Hanumangarh under the Prevention of Food Adulteration Act is quashed and set aside.Petition allowed. *******