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2007 DIGILAW 157 (GUJ)

CHAMPAKLAL SHIVRATAN KESAT v. STATE OF GUJARAT

2007-03-07

K.S.JHAVERI

body2007
K. S. JHAVERI, J. ( 1 ) BY way of this application, the applicant has prayed to quash and set aside the Criminal Case No. 737 of 1992 pending before the Judicial Magistrate, First Class, Pavi Jetpur. ( 2 ) ON 30. 6. 92, the respondent Food Inspector filed a Criminal Case No. 737 of 1992 before the Judicial Magistrate, First Class, pavi Jetpur under Section 161 (4) (i) (ii) of prevention of Food Adulteration Act, 1954 against 5 accused including the present applicant inter alia alleging that on 14. 3. 91 the complainant had taken samples of Jagat coconut Cookies (300 gms) for inspection and as per the laboratory test, the said sample contained Olic Acid (3. 47%) against the maximum permissible content of 1. 5%. ( 3 ) MR. Mathew, learned advocate appearing for the applicant has submitted that maheshwari Food Products is a partnership firm wherein the present applicant is the owner and one Shri Mukutsing ramgopalsing was nominated to be the incharge of the said firm. The said nomination was also acknowledged by the Local health Authority of Ahmedabad Municipal Corporation. ( 4 ) HE has further submitted that as per section 17 (2) of the Food Adulteration Act, 1954, the applicant is not at all responsible for the action or inaction of the nominee Shri mukutsing Ramgopalsing when the said nominee was nominated vide a resolution and was accepted by the Local Authority by issuing a certificate as per Rule 12 (B) of prevention of Food Adulteration Rules, 1955. He has submitted that even then the prosecution is filed against the present applicant without joining the competent person required to be joined on behalf of the partnership firm. ( 5 ) IN order to support his submission, Mr mathew has placed reliance on a decision of the Apex Court in the case of R. Banerjee and Others v. H. D. Dubey and Ors. ( 6 ) HEARD learned advocates for the parties and perused the documents placed on record. ( 5 ) IN order to support his submission, Mr mathew has placed reliance on a decision of the Apex Court in the case of R. Banerjee and Others v. H. D. Dubey and Ors. ( 6 ) HEARD learned advocates for the parties and perused the documents placed on record. At the outset, it would be quite relevant to peruse Section 17 (2) of the Prevention of Food Adulteration Act and the same reads as under: 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 or any offence under this act 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, alongwith the written consent of such Director or manager for being so nominated. ( 7 ) ON the basis of the perusal of the aforesaid provisions of Section 17 and the documents placed on record, it is clear that the firm nominated Shri Mukutsing ramgopalsing Parihar as the in-charge of the day-to-day and routine affairs of the firm in accordance with law. ( 8 ) ON a careful perusal of the materials placed on record, it is borne out that the firm vide application dated 18. 1. 91 had nominated one Shri Mukutsing Parihar as Manager and day- to-day in-charge of the firm which was accepted by the Local (Health)Authority and a certificate dated 28. 1. 91 to that effect was also issued. Therefore, it is an admitted fact that the firm had made requisite nomination as required by sub-section (2) of Section 17 of the Act and hence only nominated person could be proceeded against and punished under the Act. ( 9 ) IN that view of the matter, looking to the various provisions of law and the facts of the present case, this Court is of the view that after issuance of certificate dated 28. 1. ( 9 ) IN that view of the matter, looking to the various provisions of law and the facts of the present case, this Court is of the view that after issuance of certificate dated 28. 1. 91 nominating Shri Mukutsing ramgopalsing Parihar to exercise all the powers and take all steps to prevent the commission of any offences under the said act, the present petitioner ought not to have been held responsible for any action or inaction on the part of Shri Parihar in the matters of the company. ( 10 ) IN this context it would also be relevant to peruse the decision of the Apex court relied on by the learned advocate for the applicant in the case of R. Banerjee (supra), wherein the Apex Court in para 4 of the judgment has observed that from the scheme of Section 17 it is clear that where a company has committed an offence under the Act, the person nominated by the company under sub-section (2) of Section 17 to be in-charge of, and responsible to, the company for the conduct of its business shall be proceeded against unless it is shown that the offence was committed with the consent connivance negligence of any other Director, Manager, Secretary or Officer of the company in which case the said person can also be proceeded against and punished for the commission of the said offence. It is only where no person has been nominated under sub-section (2) of Section 17 that every person, who at the time of the commission of the offence was in- charge of and was responsible to the company for the conduct of its business can be proceeded against and punished under the law. ( 11 ) MOREOVER, when an offence is alleged to have been committed by a company, it is only the person who has been nominated to be in-charge of the business who is to be prosecuted. Other partners of the firm cannot be dragged into trial merely on the principle of vicarious liability when there is no prima facie evidence to show that they had anything to do with the management or the affairs of the company. Other partners of the firm cannot be dragged into trial merely on the principle of vicarious liability when there is no prima facie evidence to show that they had anything to do with the management or the affairs of the company. ( 12 ) IN that view of the matter, this Court is at a loss to understand as to why prosecution was filed against the present petitioner without joining the person responsible to the firm for the conduct of its business. Learned advocate appearing for the respondent is not in a position to point out any factual aspect controverting this submission. This Court is therefore of the view that it would not be appropriate to proceed against the present applicant and this application is required to be allowed. In the premises aforesaid, this application is allowed. The Criminal Case No. 737 of 1992 pending before the Judicial Magistrate, First Class, Pavi Jetpur is quashed and set aside qua the present applicant only. Rule is made absolute accordingly. Application allowed.