JUDGMENT S. K. Sahoo, J. - Heard Mr. Sumit Lal, learned counsel for the petitioner and Mr. Pradipta Kumar Mohanty, learned Senior Advocate representing Cuttack Municipal Corporation (opp. party). This is an application under section 482 of Cr.P.C., 1973 filed by the petitioner challenging the impugned order dated 12.04.2001 passed by the learned S.D.J.M., Sadar, Cuttack in 2(c) CC Case No. 78 of 2001 in taking cognizance of the offence under section 16(1)(a)(i)of the Prevention of Food Adulteration Act, 1954 (hereafter 1954 Act') and issuance of process against him. 2. It appears that the opp. party-Cuttack Municipal Corporation filed the complaint petition against the petitioner as well as against one Samudar Singh and M/s. Lohia Industries. The petitioner was described as the proprietor of M/s. Lohia Industries. It is stated in the complaint petition that on 08.09.1998 at about 4.00 p.m. during the inspection by the complainant along with the staff of the Crime Branch at Gopalpur, it was found that a tanker bearing Regd. No. HR 29A 0675 was standing on the road loaded with mustard oil. The complainant disclosed his identity to the driver of the tanker namely Sri Samuder Singh (accused No.1) who was present in the tanker and inspected the mustard oil from the tanker and suspected the stock of mustard oil to be adulterated. He served a notice on Samuder Singh under Section 12 of the 1954 Act in presence of the witnesses to take sample of the mustard oil for analysis and report. The accused No.1 Samuder Singh acknowledged the receipt of the notice. The cost of the sample of mustard oil of 750 grams was calculated and offered to the accused No. 1 but he refused to accept. 750 grams of mustard oil was collected from the tanker and divided into three usual parts and sealed in three dry and clean glass bottles. The sample bottles were levelled and rapped with brown paper level again. The paper slips were affixed on the sample bottles and fastened with twin thread and sealed. The signature of accused No. 1 was taken over the paper slip of the sample. It was enquired from the accused No. 1 that the mustard oil tanker was sent by accused No.2 M/s. Lohia Industries, Rajasthan to M/s. J.S. Oil Industries, Janla, District-Khurda through transporter Sanny Road Line of Delhi. The signature of accused No. 1 was taken over the paper slip of the sample. It was enquired from the accused No. 1 that the mustard oil tanker was sent by accused No.2 M/s. Lohia Industries, Rajasthan to M/s. J.S. Oil Industries, Janla, District-Khurda through transporter Sanny Road Line of Delhi. The tanker No. HR 29A 0675 and the stock of mustard oil were seized under Section 10 (4) of the 1954 Act The seized tanker was kept in the police custody of Sadar Police station. On 09.09.1998 one sample of mustard oil was sent to the Deputy Director-cum-public analyst to Government of Orissa, Bhubaneswar along with the memorandum for analysis and report and another two samples of mustard oil along with the copy of the memorandum were sent to Local Health authority i.e C.D.M.O., Cuttack to retain with him for future need. The copy of the notice under Section 11 of the 1954 Act was sent to accused No.2 M/s. Lohia Industries, the manufacturer of the mustard oil with intimation to M/s. J.S. Oil Industries, Janla, Khurda. The report of the public analyst was received and it was reported that the the sample of mustard oil was adulterated. The tanker was released as per the order of the Court and the stock of the mustard oil was kept in the safe custody of one Bijaya Kumar Agarwal. As the accused persons appeared to have committed an offence under Section 16 of the 1954 Act, for sale and manufacture of adulterated mustard oil, the proforma P.R. and the relevant documents were placed before the C.D.M.O., Cuttack to obtain written consent under Section 20 of the 1954 Act and ultimately the complaint petition was filed. 3. It appears that earlier M/s. Lohia Industries approached this Court in connection with this case as the prayer made by one Puranmal Choudhury as the nominee of M/s. Lohia Industries before the learned S.D.J.M., Sadar, Cuttack to send the sample of the seized mustard oil to the Central Food Laboratory for examination under provision of 1954 Act was turned down in Criminal Misc. Case no 300 of 1999. This Court vide order dated 20.06.2003 quashed the order passed by the learned S.D.J.M, Sadar, Cuttack and directed the learned Magistrate to take steps in that regard as prayed for by the nominee of the petitioner. Case no 300 of 1999. This Court vide order dated 20.06.2003 quashed the order passed by the learned S.D.J.M, Sadar, Cuttack and directed the learned Magistrate to take steps in that regard as prayed for by the nominee of the petitioner. It is stated by the learned counsel for the petitioner that in pursuance of the order dated 20.06.2003 passed by this Court in Criminal Misc. Case No. 300 of 1999, the sample of the seized mustard oil was sent to the Central Food Laboratory for examination and report has already been received. 4. The learned counsel for the petitioner contended that since the company had already nominated Puranmal Choudhury under Section 17(2) of the 1954 Act to be responsible to the firm for the conduct of the business of the oil mill and authorized him to exercise all the steps that might be necessary to prevent the commission of any offence by the firm under 1954 Act and the same was also communicated to all concerned, therefore, filing of the complaint petition against the petitioner is totally misconceived. Learned counsel for the petitioner brought to my notice Annexure-1 which is a document of nomination dated 01.11.1990 and it was communicated to all concerned on 27.11.1990 and the same was acknowledged by the Local Health Authority on 15.12.1990. 5. In this case, the petitioner has made only Cuttack Municipal Corporation as opp. party and the co-accused persons i.e. M/s. Lohia Industries as well as Sumuder Singh have not been arrayed as opp.parties. From the document under Annexure-1, it cannot be conclusively said that at the relevant point of time when the occurrence took place, the nomination was still under force. Section 17(2) of 1954 Act, reads as follows : "17(2). Any company may, by order in writing, authorize 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 of any offence under this Act and 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, along with the written consent of such director or manager for being so nominated. Explanation.-Where a company has different establishments or branches or different units in any establishment or branch, different persons may be nominated under this subsection in relation to different establishments or branches or units and the person nominated in relation to any establishment, branch or unit shall be deemed to be the person responsible in respect of such establishment, branch or unit." Section 17(1)(a)(i) of the 1954 Act states that where an offence under the Act has been committed by a company, the person, if any, who has been nominated under Sub-section (2) of Section 17 to be in charge of, and responsible to the company for the conduct of the business of the company and the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Section 17 (1)(a)(ii) of the 1954 Act states that where an offence under the Act has been committed by a company, where no such person as mentioned under clause (a)(i) of Section 17(1) has been so nominated, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company and the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Therefore, if there is a valid nomination in existence as on the date of the commission of the offence, the case would be governed by Section 17(1)(a)(i)of the 1954 Act and Section 17(1)(a)(ii) of the 1954 Act would not be attracted. On a bare reading of Section 17(2) of 1954 Act, it is apparent that the company can authorize any of its directors or managers in writing to exercise all such powers or to take all such steps as may be necessary or expedient to prevent the commission of any offence under 1954 Act by the company and in that respect notice has to be given to the Local (Health) Authority in such form and in such manner as many be prescribed. Notwithstanding the nomination of a person responsible under Section 17(2), there can also be prosecution of any director, manager, secretary or other officer of the company as envisaged under Section 17(4) but in such a case, it is necessary for the prosecution to prove that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of such person. 6. When the necessary parties like the nominator i.e. M/s. Lohia Industries and the nominee (which is stated to be one Puranmal Choudhury) are not before me and the nomination is of the year 1990 and the offence is stated to have taken place in the year 1998, at this juncture, I am not in a position to appreciate that as on the date of occurrence, nomination in favour of Puranmal Choudhury was valid and subsisting without any documentary evidence to that effect The matter can be adjudicated by the learned S.D.J.M., Sadar, Cuttack on the appropriate application filed by the petitioner after hearing the necessary parties. 7. Learned counsel for the petitioner submits that there is no specific averment in the complaint petition to the effect that at the time the offence was committed, the petitioner was in charge of, and was responsible to, the company for the conduct of the business of the company and therefore, initiation of the prosecution against the petitioner was not proper and justified and the same should be quashed. It appears that the petitioner has been described as the proprietor of the company and there are some averments in the complaint petition that the accused persons have committed the offence. Even in absence of such averment what has got relevance in view of Section 17(1)(a)(ii) of 1954 Act, there is no bar to prosecute a proprietor of the company if the necessary ingredients as required under Section 17(4) of 1954 Act are satisfied. Even in absence of such averment what has got relevance in view of Section 17(1)(a)(ii) of 1954 Act, there is no bar to prosecute a proprietor of the company if the necessary ingredients as required under Section 17(4) of 1954 Act are satisfied. In case of R. Banerjee and others v. H.D. Dubey and others, reported in A.I.R. 1992 S.C. 1168, it is held that Sub-section (4) of Section 17 of 1954 Act, therefore, makes it clear that notwithstanding the nomination under Sub-section (2) of Section 17 and notwithstanding clause (a)(i) of Sub-section (1) of Section 17, any director, manager, secretary or other officer of the company, other than the nominated person, can be proceeded against and punished if it is shown that the offence was committed with his consent or connivance or negligence. It is crystal clear from the scheme of Section 17 that where a company has committed an offence under the 1954 Act, the person nominated under Sub-section (2) 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. 8. Therefore, while not interfering with the order of taking cognizance and issuance of process by the learned S.D.J.M , Sadar, Cuttack, opportunity is given to the petitioner to file appropriate application before the learned S.D.J.M., Sadar. Cuttack in 2(c) CC Case No. 78 of 2001 bringing the factum of nomination in favour of Puranmal Choudhury as contemplated under Section 17(2) of the 1954 Act. The learned S.D.J.M. after hearing the petitioner and all the necessary parties shall adjudicate the matter in accordance with law. Cuttack in 2(c) CC Case No. 78 of 2001 bringing the factum of nomination in favour of Puranmal Choudhury as contemplated under Section 17(2) of the 1954 Act. The learned S.D.J.M. after hearing the petitioner and all the necessary parties shall adjudicate the matter in accordance with law. It is made clear that this Court has not expressed any opinion on the merits of the case and if any application is filed within four weeks from today, the same shall be disposed of in accordance with law. 9. Accordingly, the CRLMC application is disposed of.