Research › Search › Judgment

Delhi High Court · body

2007 DIGILAW 536 (DEL)

V. K. TEWARI v. STATE OF DELHI

2007-03-12

SHIV NARAYAN DHINGRA

body2007
SHIV NARAYAN DHINGRA, J. ( 1 ) THIS petition has been preferred by the petitioner under Section 482 of Cr. P. C. for quashing of proceedings against the petitioner initiated by the respondent under Food Adulteration Act, 1954 (in short "the Act" ). ( 2 ) THE respondent in its complaint under section 7 read with Section 16 of the Act made four persons as the respondent. One was vendor-cum-driver, second was distributor, third the present petitioner who is chairman of M/s parag Dairy, Noida and fourth is nominee of m/s. Parag Dairy Mr. V. K. Paliwal, in charge quality-control. ( 3 ) IN the complaint, the complainant had mentioned that Mr. V. K. Paliwal, in charge quality control of Parag Dairy was the PFA nominee of Parag Dairy, so he was being made an accused the petitioner was made an accused because of his being General Manager and member secretary at the time of sampling. The contention of the petitioner is that once the company had nominated a person under section 17 (2) of the Act to be the in charge and responsible for the conduct of the business of the company, the general manager of the company cannot be prosecuted. The petitioner relied upon R. Banerjee and Ors. v. H. D. Dubey and Ors. . The respondent, on the other hand, has taken the stand that the nomination was not a valid nomination as the nomination was not accepted and signed by Chief Medical officer and despite repeated requests, requisite resolution of the company, appointing Mr. Paliwal as nominee, has not been filed. ( 4 ) THE issue whether the person other than the nominee can also be made an accused has been set at rest by the Supreme Court in r. Banerjee's case (Supra ). The Supreme court laid down that where an offence under the Act is alleged to be committed by the company and where company has nominated any person to be the in charge and responsible to the company for conducting its business, it is that person who will be liable to be proceeded against and punished for the commission of the offence under the Act. However, if no person has been nominated then the person present at the time of commission of offence, who was in charge and responsible to the company for conduct of its business, shall be proceeded against and punished for the crime. In such a case, the proviso to Section 17 offers the defence in that the accused can prove his innocence by saying that offence was committed without his knowledge and in exercise of due diligence. Supreme Court also observed that where a company had made a nomination under sub Section 22, only the nominated person can be prosecuted against and punished and the others cannot be proceeded against except the company itself. The other person can be prosecuted only if the complainant shows that offence was committed with consent or in connivance of board of Directors, managers, secretaries or some other officer of the company or on account of negligence of anyone of them or more of them and case is set up against the said persons of such negligence. In the instant case, the complainant has not set up a case of negligence, connivance and consent on the part of Mr. V. K. Tewari, the present petitioner, but the complainant has stated that since he was the general manager and member secretary at the time of sampling, he was made an accused. I consider that in view of the law laid down by the Supreme Court in above case, mr. V. K. Tiwari, in his personal capacity, could not have been made an accused. However, the company M/s Parag Dairy could have been made an accused as a legal entity and it should have been left to the company as to through whom it wanted to be represented in the court. Any person duly authorized by the company could have appeared on behalf of the company. ( 5 ) THE plea that the nomination was not a valid nomination has not been taken in the complaint. In the complaint, the complainant has stated that Mr. V. K. Paliwal was a nominee of the company and has not allowed that the nomination was not valid nomination. Copy of form 12-B filed by the company with the complaint, has been placed on record. This would show that the nomination is duly accpeted and signed by Mr. V. K. Paliwal. V. K. Paliwal was a nominee of the company and has not allowed that the nomination was not valid nomination. Copy of form 12-B filed by the company with the complaint, has been placed on record. This would show that the nomination is duly accpeted and signed by Mr. V. K. Paliwal. Non-signing of this nomination by Chief Medical officer does not make it as an invalid nomination because receipt of this nomination is not denied by the complainant and once the nomination is received, it should have been signed by Chief Medical Officer without intervention of any other factor. As far as non filing of resolution is concerned, the respondent should have rejected the nomination at the time when it was received by it on the ground that it was not accompanied by a resolution as required under rules. The respondent can only insist upon, during the trial, for filing of this resolution in the court by the company. ( 6 ) IN view of my foregoing discussion, I consider that the petition of the petitioner for quashing of complaint and proceedings against the petitioner is liable to be allowed since the petitioner cannot be prosecuted in his individual capacity in view of the law laid down by the supreme Court. ( 7 ) ACCORDINGLY the petition is allowed. The proceedings against the petitioner in criminal complaint No. 29/pf/da/2002 dated 4. 2. 2002 are quashed. Petition allowed.