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2015 DIGILAW 188 (GUJ)

Natvarbhai Balubhai Patel v. State of Gujarat

2015-02-13

M.R.SHAH

body2015
Judgment M.R. Shah, J. 1. Misc. Criminal Application No. 2783 of 2011 has been preferred by the petitioners herein-original accused-Directors of one Choryasi Taluka Dudh Co-op. Milk Sale Society Limited (hereinafter referred to as "the milk society" for short), to quash and set aside the impugned criminal proceedings being Prevention of Food Adulteration Case No. 3 of 2011, pending in the Court of learned Judicial Magistrate, First Class, Surat, filed by the respondent No. 2 herein-original complainant-Food Inspector of Surat Municipal Corporation, for the offences punishable under Sec. 7 read with Sec. 16 of the Prevention of Food Adulteration Act, 1954. Misc. Criminal Application No. 2782 of 2011 has been preferred by the petitioners herein-original accused-Directors of one Choryasi Taluka Dudh Vechan Karyakari Mandali Limited, to quash and set aside the impugned criminal proceedings being Prevention of Food Adulteration Case No. 2 of 2011, pending in the Court of learned Judicial Magistrate, First Class, Surat, filed by the respondent No. 2 herein-original complainant-Food Inspector of Surat Municipal Corporation, for the offences punishable under Sec. 7 read with Sec. 16 of the Prevention of Food Adulteration Act, 1954. 2. That the original complainant-Food Inspector of Surat Municipal Corporation visited/inspected Dairy/Milk Society on 5-12-2009 at about 6-00 O'clock in the morning; he took different samples of buffalo milk and same were sent to laboratory. According to the Food Inspector, both the samples were found to be adulterated and not meeting with the standard prescribed under the Food Adulteration Act. That thereafter after obtaining necessary sanction from the competent authority, the original complainant-Food Inspector filed the impugned criminal proceedings being P.F.A. Case Nos. 3 and 2 of 2011 against the respective petitioners herein-original accused. 2.1. Feeling aggrieved by the impugned criminal proceedings, the petitioners herein who are Directors of the Milk Society who are sought to be vicariously liable, have preferred the present petitions under Sec. 482 of the Code of Criminal Procedure. 3. Mr. Dipen Desai, learned Advocate appearing on behalf of the respective petitioners herein-some of the original accused-Directors of the milk society, has vehemently submitted that as such the impugned criminal proceedings against the petitioners herein is non-application of mind and without considering the proper facts by the Food Inspector. It is submitted by Mr. Desai, learned Advocate appearing on behalf of the petitioners that as such samples were taken by the Food Inspector on 5-12-2009. It is submitted by Mr. Desai, learned Advocate appearing on behalf of the petitioners that as such samples were taken by the Food Inspector on 5-12-2009. It is submitted that at the relevant time i.e. on 5-12-2009, none of the petitioners were Directors/Office-bearers and/or in-charge of the administration and management of the milk society on 5-12-2009. It is submitted that as such the election of the members of the Managing Committee of the society was held on 8-11-2009 and first meeting of the newly elected members of the Managing Committee was held on 31-12-2009 and till then i.e. till 31-12-2009, Administrator was in-charge of the administration and management of the milk society, who was appointed by the District Registrar. It is submitted, that therefore, when at the relevant time of taking samples, the petitioners were not the Directors and/or in-charge of the administration and management of the milk society, the petitioners herein-original accused cannot be held responsible and/or liable for prosecution under the Food Adulteration Act for the samples which were taken on 5-12-2009. It is submitted that prosecution for the Food Adulteration Act can be initiated and they can be held vicariously liable only if they were in administration and management of the society. It is submitted, that therefore, for the samples collected on 5-12-2009 which are alleged to have been found to be adulterated, the petitioners-Directors cannot be held vicariously liable as admittedly they were not in-charge of administration and management of the milk society. It is submitted that therefore the impugned criminal proceedings and even the order passed by the learned Judicial Magistrate, First Class, directing to issue summons against the petitioners in the aforesaid criminal cases suffers from non-application of mind, and therefore, the same deserves to be quashed and set aside. 3.1. It is submitted that in view of the above, to continue criminal proceedings against the applicants herein-original accused would be unnecessary harassment and would cause undue hardship to the petitioners, and therefore, it is requested to allow the present petition and quash and set aside the impugned criminal proceedings. 4. Mr. Masoom Shah, learned Advocate appearing on behalf of the Food Inspector of Surat Municipal Corporation-original complainant has vehemently opposed the present petitions. It is submitted that earlier very petitioners preferred Misc. 4. Mr. Masoom Shah, learned Advocate appearing on behalf of the Food Inspector of Surat Municipal Corporation-original complainant has vehemently opposed the present petitions. It is submitted that earlier very petitioners preferred Misc. Criminal Application No. 11131 of 2010 before this Court requesting to quash and set aside one another criminal proceedings initiated under Sees. 7 and 16 of the Prevention of Food Adulteration Act with respect to samples taken before 15-12-2009, on the very grounds which are canvassed in the present proceedings, i.e. on the ground that at the time when the samples were taken, they were not in-charge of the administration and management of the milk society and they same in-charge of the society only on 31-12-2009, and therefore, they cannot be held vicariously liable under the Act. It is submitted, that however, the learned Single Judge of this Court did not quash and set aside the criminal proceedings impugned in the aforesaid quashing petition and rejected the petition by observing that the aforesaid is in realm of defence and said contention needs to be canvassed before the learned trial Court and to be appreciated in proper perspective in accordance with law. It is submitted, that therefore, when in the identical facts and circumstances, the learned Single Judge refused to quash and set aside the criminal proceedings on the grounds on which the present criminal proceedings are requested to be quashed and set aside, it is requested not to exercise powers under Sec. 482 of the Code of Criminal Procedure in the present proceedings on the ground of estoppel, res judicata, constructive res judicata and/or waiver. 4.1. Mr. Shah learned Advocate appearing on behalf of the original complainant has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Hope Plantations Ltd. v. Taluka Land Board, Peermade, reported in 1999 (5) SCC 90 as well as in the case of Vijyabai v. Shri Ram Tukaram, reported in 1999 (1) SCC 693 (Para 14) in support of his above submissions. 4.2. Mr. 4.2. Mr. Shah learned Advocate appearing on behalf of the original complainant has further submitted that as such before filing the complaint the Food Inspector sought necessary information from the society as to who were in-charge of the milk society and after considering the letter written by the Chairman of me milk society dated 4-5-2010 and on the basis of the information furnished by the Chairman of the milk society by letter dated 4-5-2010 in which the Chairman gave names of the very petitioners herein as the persons in-charge of the society on 5-12-2009, the Food Inspector, after obtaining sanction from the competent authority, has filed the impugned complaints. Therefore, it is submitted that now it is not open for the petitioners to contend that as on 5-12-2009 me petitioners were not the Directors and/or in-charge of the milk society. It is submitted, that therefore, as such, no fault can be found with the Food Inspector-original complainant in filing the impugned complaints against the petitioners herein, since the impugned complaints have been filed on the basis of the information given by the Chairman of the milk society vide letter dated 4-5-2010. It is submitted, that therefore, on the ground of estoppel also now it is not open for the petitioners to contend that as on 5-12-2009, they were not the Directors of the milk society, and therefore, they cannot be held vicariously liable. 4.3. Mr. Shah learned Advocate appearing on behalf of the original complainant has further submitted that at this stage only averments and allegations in the complaints are required to be considered and not the supporting documents produced along the present quashing petitions. Relying upon the decision of the Hon'ble Supreme Court in the case of State of M.P. v. Awadh Kishore Gupta, reported in 2004 (1) SCC 691 , it is requested to dismiss the present quashing petitions. Making above submissions and relying upon above decisions, it is requested to dismiss the present quashing petitions. 5. Heard the learned Advocates appearing on behalf of the respective parties at length. 5.1. At the outset, it is required to be noted that the impugned criminal proceedings have been initiated against the petitioners herein for the offences under the Prevention of Food Adulteration Act with respect to the samples which were drawn on 5-12-2009 and they are being prosecuted on the ground of vicarious liability. 5.1. At the outset, it is required to be noted that the impugned criminal proceedings have been initiated against the petitioners herein for the offences under the Prevention of Food Adulteration Act with respect to the samples which were drawn on 5-12-2009 and they are being prosecuted on the ground of vicarious liability. However, it is required to be noted and it has come on record and it is not in dispute that the present Managing Committee of the members of the milk society was not in existence on 5-12-2009 i.e. the day on which the samples were drawn. It is not in dispute that the election of the members of the Managing Committee was held on 8-11-2009 and the first meeting of the newly elected members was called and held on 31-12-2009 and in the said meeting, charge/administration/management of the milk society was handed over to them. It is also not in dispute and it is also on record that till 31-12-2009 Administrator appointed by the District Registrar was in-charge of the administration and management of the milk society. Under the circumstances, it is not appreciable at all as to how the respective petitioners herein-Directors of the milk society can be held vicariously liable for the offences under the Prevention of Food Adulteration Act with respect to the samples which were drawn on 5-12-2009 i.e. the day on which samples were drawn, the petitioners wee not in-charge of the milk society. It cannot be disputed that they can be held vicariously held liable as in-charge of the milk society only when it is established and proved that they were in-charge of the milk society as on the date on which samples were drawn. Under the circumstances, as such, the petitioners cannot be held vicariously liable for the offences under the Food Adulteration Act with respect to the samples which were drawn on 5-12-2009. Under the circumstances, to continue the criminal proceedings against the petitioners for the offences for which they cannot be held liable, more particularly vicariously liable, would cause undue hardship to them and they will have to face the trial unnecessarily. Therefore, this Court is of the opinion that this is a fit case to exercise powers under Sec. 482 of the Code of Criminal Procedure and to quash and set aside the impugned criminal case and terminate the proceedings arising therefrom. 5.2. Therefore, this Court is of the opinion that this is a fit case to exercise powers under Sec. 482 of the Code of Criminal Procedure and to quash and set aside the impugned criminal case and terminate the proceedings arising therefrom. 5.2. Now, so far as the submission made by Mr. Shah, learned Advocate appearing on behalf of the original complainant and request to dismiss the present quashing petitions on the ground of res judicata, constructive res judicata, estoppel etc. is concerned, the aforesaid has no substance. It is the case on behalf of the original complainant that in some other proceedings with respect to samples which were drawn prior to 31-12-2009 when the petitioners approached and requested to quash and set aside the criminal proceedings, the learned Single Judge refused to quash and set aside the criminal proceedings impugned therein, by observing that the aforesaid is in the realm of appreciation of evidence which is required to be considered at the time of trial, and therefore, request on behalf of the original complainant not to entertain the present quashing petitions and not to quash and set aside the impugned criminal proceedings in exercise of powers under Sec. 482 of the Code of Criminal Procedure on the ground of res judicata, constructive res judicata and/or waiver is concerned, it is required to be noted that the learned Single Judge in the aforesaid Misc. Criminal Application No. 11131 of 2010 has not decided any issue finally, more particularly, the issue whether the petitioners can be held vicariously liable for the offences under the Prevention of Food Adulteration Act for the samples which were drawn prior to 31-12-2009 or not. Under the circumstances, there is no question of applicability of res judicata and/or constructive res judicata as submitted by Mr. Shah, learned Advocate appearing on behalf of the original complainant. The principle of res judicata and/or constructive res judicata would be applicable only in a case where any particular issue is finally decided and determined by the Court. Under the circumstances, the order passed by the learned Single Judge in Misc. Criminal Application No. 11131 of 2010 would not operate as res judicata and/or constructive res judicata as contended by Mr. Shah, learned Advocate appearing on behalf of the original complainant. 5.3. Under the circumstances, the order passed by the learned Single Judge in Misc. Criminal Application No. 11131 of 2010 would not operate as res judicata and/or constructive res judicata as contended by Mr. Shah, learned Advocate appearing on behalf of the original complainant. 5.3. Similarly, the contention on behalf of the original complainant that the Food Inspector-original complainant filed the impugned criminal complaint against the petitioners on the basis of information received from the Chairman of the milk society vide letter dated 4-5-2010, and therefore, it is not open for the petitioners now to contend that they were not the Directors in-charge of the milk society as on 5-12-2009, and therefore, to dismiss the present quashing petitions on the ground of estoppel is concerned, the aforesaid has also no substance. From bear reading of the letter dated 4-5-2010 issued by the Chairman of the milk society, on the basis of which the petitioners are arraigned as accused in the impugned criminal complaints, it appears that Inspector has either not properly appreciated and/or considered the contents of the said communication or he has misread the said communication. In the said communication dated 4-5-2010, it is not stated that as on 5-12-2009 the petitioners were in-charge of the milk society. What is stated in the said communication is that from 24-11-2009 they are elected members of the society and they have become members of the Managing Committee. In the said communication dated 4-5-2010, it is not stated that as on 5-12-2009 the petitioners were in-charge of the milk society. What is stated in the said communication is that from 24-11-2009 they are elected members of the society and they have become members of the Managing Committee. The contention on behalf of the Food Inspector-complainant that the Chairman did not give proper information and/or correct information as to who were in-charge of the milk society as on 5-12-2009 and who were the office bearers and in-charge of the milk society as on 5-12-2009, and therefore, not to quash and set aside the impugned criminal proceedings is concerned, if the Food Inspector was of the opinion that correct and complete informations have not provided and/or half-hearted and/or incomplete information has been supplied and some informations were lacking and/or some more informations were required, in that case before applying for sanction and/or filing the complaints, he ought to have verified the facts and confirmed the fact as to who were in-charge of the milk society on the date on which samples were drawn and without verifying the same, he ought not to have arraigned the present petitioners as accused in the impugned criminal proceedings without full and complete particulars/informations and without satisfying fully as to who were in-charge of the administration and management of the milk society and/or who were the office-bearers of the milk society as on the date on which the samples were drawn. 5.4. Under the circumstances, when the respective petitioners-original accused-Directors of the milk society, were as such not in-charge of the milk society and/or in the administration/management and/or affairs of the milk society as on 5-12-2009 i.e. the day on which samples were drawn which were found to be adulterated, they cannot be held vicariously liable. Under the circumstances to continue the criminal proceedings against the petitioners herein would cause undue hardships and unnecessary harassment to the petitioners and they will have to face the trial unnecessarily, for the offences which they have not committed and/or for which they cannot be held vicariously liable, and therefore, this is a fit case to exercise powers under Sec. 482 of the Code of Criminal Procedure and to quash and set aside the impugned complaint and terminate the proceedings arising therefrom so far as the petitioners herein are concerned. In view of the above and for the reasons stated above, both the quashing petitions succeed. The impugned Criminal Case being Prevention of Food Adulteration Case Nos. 2 and 3 of 2011, pending in the Court of learned Judicial Magistrate, First Class, Surat, filed by the respondent No. 2 herein-original complainant-Food Inspector of Surat Municipal Corporation, for the offences punishable under the Prevention of Food Adulteration Act, are hereby quashed and set aside and criminal proceedings arising therefrom are hereby terminated qua the petitioners in these proceedings only, who were not in-charge of the administration, management and affairs of the milk society on 5-12-2009 i.e. the day on which the samples were drawn, which were found to be adulterated and they came in-charge of the administration and management of the milk society on and from 31-12-2009. Present order shall be applicable to the present petitioners only and not to other accused who are not before this Court and prosecution against other accused be proceeded further in accordance with law and on merits. Rule is made absolute accordingly in each of the present petitions. Petition Allowed.