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2011 DIGILAW 1287 (RAJ)

V. P. Rao v. State of Rajasthan

2011-07-05

KAILASH CHANDRA JOSHI

body2011
JUDGMENT 1. - This cri.misc. petition has been filed by two petitioners V.P. Rao and A.K. Haldar, against the order dated 23.04.2005 passed by the learned District & Sessions Judge, Jaisalmer in criminal revision No. 12/2004, by which the learned District & Sessions Judge affirmed the order dated 02.08.2004 passed by the learned trial court in Criminal Case No. 367/1993 State v. Nanad Kumar and Ors. 2. The short facts giving rise to this criminal misc. petition are that on 29.04.1992 Food Inspector , Jaisalmer inspected the commercial premises of Manoj Kumar and took sample of mustard oil and upon analysis the sample was found to be adulterated and a complaint under section 7/16 of the Prevention of Food Adulteration Act 1954 ( hereinafter referred to as 'the Act') was filed before the leanred Chief Judicial Magistrate, Jaisalmer on 23.02.1993. The complaint was field against Manoj Kumar, M/s Hari Om Co. and its partners Shri Bhanwar Lal,Shri Jawahar Lal and Shri Krishnan. The complaint did not contain any allegation against the petitioners and no reference was made in the complaint regarding the present petitioners. Thereafter, on 31.12.1997, after almost six years ,the learned Chief Judicial Magistrate , on an application filed by the distributor alleging that the said oil was manufactured by ITC Agro Tech Ltd., 100 Industrial Area, Jhotwara, Jaipur , ordered to take cognizance of the offence under section 7/16 of the act and directed the accused to be summoned. By the order of this Court dated 24.07.2000 cognizance taken against the Directors of ITC Agro Tech Ltd. was set aside and thereafter vide order dated 23.07.2001 the cognizance against the present petitioners was taken by the learned Chief Judicial Magistrate and the charges were framed under section 7/16 of the Act on 02.08.2004. A revision petition was filed by the petitioners against the order of the learned Chief Judicial Magistrate, Jaisalmer which was rejected by the learned District and Sessions Judge, Jaisalmer, vide order dated 23.04.2005. 3. Being aggrieved by both these orders, this Cri. Misc. Petition has been filed, with the prayer to set aside the order dated 02.08.2004. 4. Counsel for the petitioner contended that the order of framing of charge, which was affirmed by the learned District & Sessions Judge, Jaisalmer, is absolutely nothing but a gross abuse of the process of the law. Being aggrieved by both these orders, this Cri. Misc. Petition has been filed, with the prayer to set aside the order dated 02.08.2004. 4. Counsel for the petitioner contended that the order of framing of charge, which was affirmed by the learned District & Sessions Judge, Jaisalmer, is absolutely nothing but a gross abuse of the process of the law. He, further contended that the learned trial court erred in framing the charges against the present petitioners. 5. The learned counsel for the petitioner contended that the proceedings of the trial court suffers from non-compliance of section 13 (2) of the Act. Therefore, the entire proceedings has been vitiated on this count alone and as such it is nothing but an abuse of the process of the court. The present petitioners have been implicated without valid sanction from the competent authority. 6. Learned counsel for the petitioner further contended that as per Section 17(2) of the Act, the company has nominated Mr. S.C.Shah, Manager of the company to be the in charge and responsible to the said company for the conduct of the business and this authorisation is dated 26.03.1992 and it has been served on the local health authorities. He further contended that the present petitioners have been charged by the learned trial court, without there being any evidence regarding authorised person under section 17 of the Act. Learned revisional court also did not consider this aspect. He therefore, prayed that the order of the learned trial court as well as the revisional court ,may be set aside. 7. Counsel for the petitioner in support of his arguments relied on the following judgment: 8. Pepsico India Holdings (P) Ltd. v. Food Inspector, (2011) 1 SCC 176 . Counsel for the petitioners, while relying on the above decision of the Hon'ble apex Court, contended that the food Inspector must have averred in the complaint itself regarding the individual liability of the Director or the person authorized, so as to make him liable and when a particular Manager had been authorised under section 17(2) as person responsible for ensuring prevention of adulteration, other directors could not be prosecuted. 9. I have perused the complaint filed by the Food Inspector in the court of Chief Judicial Magistrate, Jaisalmer. 9. I have perused the complaint filed by the Food Inspector in the court of Chief Judicial Magistrate, Jaisalmer. There are no averments in the complaint regarding the individual liability of the present petitioners or any pleading that they are the authorised persons of the Company as per section 17 (2) of the Act. In addition to it, it is admitted that the right of the present petitioners arising under section 17 (2) of the Act, has been infringed and they have been deprived from requesting the court to sent the sample to the Central Food Laboratory as held in both the above judgments . 10. Having considered the matter in its totality and also having regard to the fact that Mr.S.C.Shah , the Manager of the ITC Agro Tech Ltd. has been nominated under section (2) of section 17 of the Act to be a person incharge and responsible to the company for the conduct of its passing the orders, I am of the view that the framing of the charge against the two petitioners and affirming the order by the revisional court , is absolutely an abuse of the process of the court and, therefore, this criminal misc. petition deserves to be allowed and the order of the learned trial court framing the charges dated 02.08.2004 and the order of the learned revisional court dated 23.04.2005, affirming the order, deserves to be quashed. 11. Accordingly, this Cri. Misc. petition is allowed and the order of the learned Chief Judicial Magistrate , Jaisalmer dated 02.08.2004 and the order of the learned District & Sessions Judge, Jaisalmer dated 2.04.2005 are quashed and set aside qua the present petitioners.Petition allowed. *******