Judgment :- The petitioners in the above Crl.O.P. are the accused in C.C.No.140 of 2003 on the file of the Judicial Magistrate, Udhagamandalam and are facing trial for the alleged offences under Sections 7(i & ii) and 16(1)(a)(i) read with Section 2(ia)(a)(b) & (m) &2(ix) (k) of Prevention of Food Adulteration Act, 1954 and Rule 32 of Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as Act and Rules). 2. The petitioners have filed the above Crl.O.P seeking to quash all further proceedings in C.C.No.140 of 2003. 3. The case of the petitioners is that at 11.30 a.m. on 112. 2001, the respondent Food Inspector went to the Departmental Store, namely, M/s. Kishinchand Chellaram (India) Pvt. Ltd., situated at No.41, Commercial Road, Post Box No.10, Udhagamandalam-1, along with one M. Srinivasan, Sanitary Work Supervisor, to take food sample for chemical analysis; at that time the first accused, who was the vendor, was in-charge and managing the Store; after introducing himself that he was the Food Inspector of Udhagamandalam Municipality, he expressed his intention to take samples; he served Form-VI notice on the first accused and obtained his signature; the respondent purchased three sealed polythene pockets of Toordal weighing 500gms each kept for sale to the public for a price of Rs.46.50/- and obtained a receipt; in the receipt, the signature of the first accused and witnesses was obtained; the three sample pockets purchased by the respondents were wrapped with thick brown paper separately and the four corners were folded inwardly and pasted with gum; each pocket was tightly tied with a thread; thereafter, he followed the procedures prescribed under the Act and Rules for sending the samples for chemical analysis; one such sample was sent to the Public Analyst; after analysing the sample, a report was received from the Public Analyst, wherein, it is stated "that the sample is Adulterated since it contains the colouring matter. Tartrazine, the addition of which is not permitted in the said food as per P.F.A. Rules 1955. Also the sample is "Misbranded", since it is not labeled in accordance with requirement of Rule 32 of P.F.A. Rules, 1955"; thereafter a complaint was filed against the petitioners herein for the aforesaid offences. 4. Heard both. 5. Tartrazine, the addition of which is not permitted in the said food as per P.F.A. Rules 1955. Also the sample is "Misbranded", since it is not labeled in accordance with requirement of Rule 32 of P.F.A. Rules, 1955"; thereafter a complaint was filed against the petitioners herein for the aforesaid offences. 4. Heard both. 5. The learned counsel for the petitioners submitted that the samples have not been taken and packed as provided for under Section 11 of the Act and Rule 14 of the Rules. According to the learned counsel, the respondent Food Inspector ought to have taken the samples from the 500 gms pocket and divided the samples so taken into three parts and kept the same in clean dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation or in the case of dry substance, entrance of moisture and shall be carefully sealed. 6. According to the learned counsel, though the respondent purchased the three sealed polythene pockets of Toordhal weighing 500 gms each, he has not packed the samples so taken as provided for under the Act and Rules and the non compliance of the mandatory provisions contained in the Act and Rules vitiating the entire prosecution. In support of his contention, he placed reliance on the decision of the Bombay High Court reported in 1986(3) FAC 221 (State of Maharashtra vs. Prabhudas Atalmal Baktani). 7. The learned counsel for the petitioners contended that admittedly, the Company, namely, "Kishinchand Chellaram (India) Pvt. Ltd.," had not been arrayed as an accused in the case and it has not been implicated in the complaint and as such the complaint filed against the petitioners herein without prosecuting the company cannot be sustained. In support of the said contention, the learned counsel based reliance on the decision of the Apex Court reported in 1970(3) SCC 491 (State of Madras v. C.V. Parekh and another). 8. In support of the said contention, the learned counsel based reliance on the decision of the Apex Court reported in 1970(3) SCC 491 (State of Madras v. C.V. Parekh and another). 8. The learned counsel further submitted that in the complaint the first petitioner has been shown as Manager of the Departmental Store and he was in-charge and managing the business of the Departmental Store, but as far as the other accused, namely, the petitioners 2 to 5 are concerned, except stating that they are the directors of the Company, "Kishinchand Chellaram (India) Pvt. Ltd.," no allegations have been made to attract the provisions contained in Section 17(2) of the Act to make them vicariously liable for the offences alleged to have been committed by the Company. Therefore, according to the learned counsel for the petitioners, the learned Judicial Magistrate ought not to have taken cognizance of the offences alleged as against the petitioners herein. 9. Countering the aforesaid submissions, the learned Govt. Advocate (Crl.side) submitted that if the respondent Food Inspector had taken the samples from a open gunny bag or open container, then it is mandatory on his part to follow the procedure contemplated under Section 11 of the Act and Rule 14 of the Rules and since admittedly, the respondent Food Inspector had taken samples and such samples happened to be sealed polythene cover, the procedure contemplated under Section 11 of the Act and Rule 14 of the Rules need not be followed. The learned Govt. Advocate submitted that the object of the procedure prescribed for taking the samples is to avoid leakage, evaporation and entrance of moisture. The learned Govt. Advocate further submitted that since admittedly the samples taken were already packed in a sealed polythene cover, the question of leakage or evaporation or entrance of moisture does not arise. Therefore, when the object of the mandatory provisions has been achieved by proper sealing of the polythene pocket, there is no need for opening the polythene pocket and to take three samples and pack them as provided for under Section 11 of the Act and Rule 14 of the Rules. The learned Govt. Advocate submitted that the decision of the Bombay High Court reported in 1986 (3) FAC 221 relied upon by the learned counsel for the petitioners are distinguishable on facts and the same is not applicable to the facts of this case. 10. The learned Govt. Advocate submitted that the decision of the Bombay High Court reported in 1986 (3) FAC 221 relied upon by the learned counsel for the petitioners are distinguishable on facts and the same is not applicable to the facts of this case. 10. The learned Govt. Advocate further submitted that it is not necessary to array the company as an accused for prosecuting the directors of the company. The learned Govt. Advocate submitted that the decision reported in 1970(3)SCC 491 has been considered and explained in the decisions reported in 2000 (1) SCC 1 (Anil Hada v. Indian Acrylic Ltd.,) and 1987 (3) SCC 684 (SheoratanAgarwal v. Stateof M.P.). In the decisions, it has been laid down that the company or the company and the directors or the directors alone may be prosecuted for the offences committed by the company. 11. The learned Govt. Advocate further submitted that though there are no allegations in the complaint as to how and what manner the petitioners 2 to 5 herein are in-charge and responsible for the conduct of the business of the Company, it is sufficient to state in the complaint that they have committed the offences alleged under the Act. 12. As far as the first petitioner, Manager, is concerned, the learned Govt. Advocate submitted that since the very nature of the responsibility of the Manager is to run the business of the Departmental Store, it cannot be said that he is not in-charge and responsible for the conduct of the Departmental Store, and therefore, he stands on a different footing from the other accused. 13. As far as the first contention of the learned counsel for the petitioners is concerned, it has to be pointed out that admittedly the respondent Food Inspector had not taken samples of Toordal from the Departmental Store run by the first petitioner from any open container or open pocket or gunny bag, but admittedly, three sealed polythene pockets of Toordal weighing 500 gms each were purchased and they were sealed as stated above. Had the respondent Food Inspector taken the samples from the open container or open pocket then it is necessary to divide the samples so taken into three parts and pack the same as provided for under Section 11 of the Act and Rule 14 of the Rules. 14. As rightly contended by the learned Govt. Had the respondent Food Inspector taken the samples from the open container or open pocket then it is necessary to divide the samples so taken into three parts and pack the same as provided for under Section 11 of the Act and Rule 14 of the Rules. 14. As rightly contended by the learned Govt. Advocate, we have to see the object of the procedure prescribed under the Act and the Rules regarding packing of samples. This procedure is laid down under Section 11 of the Act and Rule 14 of the Rules only to prevent leakage, evaporation and entrance of moisture. Here, when admittedly, the Toordal is packed in a sealed polythene cover, there is no possibility of leakage or evaporation or entrance of moisture. Therefore, when the object of the procedure is already achieved by proper sealing of the polythene pocket, the non observance of the procedure contained under Section 11 and Rule 14 of the Rules will not vitiate the prosecution launched by the respondent against the petitioners herein and therefore, the first contention of the learned counsel for the petitioners cannot be countenanced. The facts of the case reported in 1986 (3) FAC 221 are totally different from the facts of this case and hence the said decision is not applicable to this case. 15. As far as the second contention of the learned counsel for the petitioners is concerned, it is no doubt true that in the decision of the Apex Court reported in 1970(3) SCC 491 , it has been laid down as under:- 12a. I have carefully considered the submissions made on either side and perused the materials available on record and also the decisions relied on by them. "3. Learned counsel for the appellant, however, sought conviction of the two respondents on the basis of Section 10 of the Essential Commodities Act under which, if the person contravening an order made under Section 3 (which covers an order under the Iron and Steel Control Order, 1956), 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 punished accordingly. It was urged that the two respondents were in charge of, and were responsible to, the Company for the conduct of the business of the Company and, consequently, they must be held responsible for the sale and for thus contravening the provisions of clause (5) of the Iron and Steel Control Order. This argument cannot be accepted, because it ignores the first condition for the applicability of Section 10 to the effect that the person contravening the order must be a company itself. In the present case, there is no finding either by the Magistrate or by the High Court that the sale in contravention of clause (5) of the Iron and Steel Control Order was made by the Company. In fact, the Company was not charged with the offence at all. The liability of the persons in charge of the Company only arises when the contravention is by the Company itself. Since, in this case, there is not evidence and no finding that the Company contravened clause (5) of the Iron and Steel Control Order, the two respondents could not be held responsible. The actual contravention was by Kamdar and Vallabhadas Thacker and any contravention by them would not fasten responsibility on the respondents. The acquittal of the respondents is, therefore, fully justified. The appeal fails and is dismissed." 16. Basing reliance on the above passage of the said decision, the learned counsel for the petitioners contended that unless and until the company is arrayed as an accused, the directors of the company, even if they are in-charge and responsible for the conduct of the company, cannot be prosecuted. The aforesaid decision came up for consideration before the Apex Court in the following two decisions, namely, 2000 (1) SCC 1 (Anil Hada v. Indian Acrylic Ltd.,) and 1987 (3) SCC 684 (SheoratanAgarwal v. Stateof M.P.). In 2000 (1) SCC 1 , in paragraph 18, the Apex Court has observed as under:- "18. The same provision under the EC Act was again considered by this Court in Sheoratan Agarwal v. State of M.P. In the said decision this Court explained the legal principle enunciated in State of Madras v. C.V. Parekh that there should be a finding that the contravention was made by the company before convicting the accused and "not that the company itself should have been prosecuted along with the accused". We may say with great respect that the above understanding of the ratio in State of Madras v. C.V. Parekh cannot be taken exception to. Chinnappa Reddy, J., who spoke for the two-Judge Bench in Sheoratan Agarwal further observed as follows:(SCCp.354, para 5). "Any one or more or all of them may be prosecuted and punished. The company alone may be prosecute. The person in charge only may be prosecuted. The conniving officer may individually be prosecuted. One, some or all may be prosecuted. There is no statutory compulsion that the person in charge or an officer of the company may not be prosecuted unless he be ranged alongside the company itself. Section 10 indicates the persons who may be prosecuted where the contravention is made by the company. It does not lay down any condition that the person in charge or an officer of the company may not be separately prosecuted if the company itself is not prosecuted. Each or any of them may be separately prosecuted or along with the company." 17. Further, in paragraph 21 of the said decision, it has been laid down as under:- "21. We, therefore, hold that even if the prosecution proceedings against the Company were not taken or could not be continued, it is no bar for proceeding against the other persons falling within the purview of sub-sections (1) and (2) of Section 141 of the Act." 18. Thus, it could be seen that in the decision reported in 1970 (3) SCC 491 , it has not been laid down that the directors of the company cannot be prosecuted unless and until the company itself is arrayed as an accused but it has been laid down that before convicting the directors of the company, a finding of guilt should be recorded as against the company for vicariously making the directors liable for prosecution. This has been explained in the aforesaid two decisions of the Apex Court and therefore, the second contention of the learned counsel for the petitioners cannot be countenanced. 19. This has been explained in the aforesaid two decisions of the Apex Court and therefore, the second contention of the learned counsel for the petitioners cannot be countenanced. 19. As far as the third contention of the learned counsel for the petitioners is concerned, as against the petitioners 2 to 5, who are the directors of the company, there are no allegations in the complaint as to how and in what manner they are in-charge and responsible for the conduct of the business of the Departmental Store run by the Company, but as far as the first petitioner is concerned, who is the manager of the Departmental Store, it goes without saying that he is in-charge and responsible for the conduct of the business of the Departmental Store. In the decision reported in AIR 1983 SC 67 (Municipal Corporation of Delhi v. Ram Kishan Rohtagi and others), the Apex Court, in paragraph 15, has laid down as under:- "15. So far as the Manager is concerned, we are satisfied that from the very nature of his duties it can be safely inferred that he would undoubtedly be vicariously liable for the offence; vicarious liability being an incident of an offence under the Act. So far as the Directors are concerned, there is not even a whisper nor a shred of evidence nor anything to show, apart from the presumption drawn by the complainant, that there is any act committed by the Directors from which a reasonable inference can be drawn that they could also be vicariously liable. In these circumstances, therefore, we find ourselves in complete agreement with the argument of the High Court that no case against the Directors (accused Nos. 4 to 7) has been made out ex facie on the allegations made in the complaint and the proceedings against them were rightly quashed." 20. If the principles laid down in the aforesaid decision is applied to the facts of this case, the third contention of the learned counsel for the petitioners has to be accepted in respect of the petitioners 2 to 5 are concerned. 21. For the aforesaid reasons, the above Crl.O.P. is allowed in respect of the petitioners 2 to 5 alone are concerned, but the above Crl.O.P. is dismissed in respect of the first petitioner is concerned. Connected Crl.M.P. is closed. 21. For the aforesaid reasons, the above Crl.O.P. is allowed in respect of the petitioners 2 to 5 alone are concerned, but the above Crl.O.P. is dismissed in respect of the first petitioner is concerned. Connected Crl.M.P. is closed. Further, the Judicial Magistrate is hereby directed to dispose of the C.C.No.140 of 2003 in respect of the first petitioner alone within four months from the date of receipt of a copy of this order.