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Himachal Pradesh High Court · body

2018 DIGILAW 931 (HP)

T. K. Sibal v. Food Inspector

2018-05-21

SANDEEP SHARMA

body2018
JUDGMENT : Sandeep Sharma, J. Being aggrieved and dissatisfied with order dated 24.1.2012, (Annexure PD), passed by the learned Chief Judicial Magistrate, Shimla in case No. 86/3 of 11/02, whereby petitioners herein have been ordered to be arrayed as co-accused, petitioners have approached this Court in the instant proceedings filed under Section 482 CrPC read with Article 227 of the Constitution of India, praying therein to set aside the impugned order referred to herein above. 2. Precisely, the facts as emerge from the record are that a complaint under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, (hereinafter, ‘Act’) came to be filed against respondent No. 2-Atul Lal, General Manager, Wildflower Hall, Chharabra, Shimla, on the allegations that on 14.3.2000, Food Inspector visited the premises of Mashobra Resorts Limited, Chharabra and found above named accused No. 1 conducting the business therein. Food Inspector after disclosing his identity purchased Dal Chini powder for the purpose of analysis against payment and thereafter prepared samples in accordance with the provisions of the Act. Food Inspector after drawing sample, sent the same for analysis to the Public Analyst. Public Analyst, Kandaghat vide report No. 125, dated 27.6.2001, reported that the batch number, month and year upto which the product was best for consumption have not been mentioned on the label. Food Inspector after having received aforesaid report, obtained written consent from the Chief Medical Officer, Shimla, District Shimla, under Section 20 of the Act to launch prosecution and in this background, a complaint under Section 16(1)(a)(i) of the Act (Annexure PB) came to be instituted against the accused Shri Atul Lal, who at the relevant time was General Manager of Wildflower Hall, Chharabra. Subsequently, during the pendency of the aforesaid complaint, an application came to be filed on behalf of the Food Inspector for impleadment of the Directors of M/s Mashobra Resorts Limited, Chharabra (respondent No.3). Learned Court below, taking note of the averments contained in the application referred to herein above, ordered for impleadment of the persons named in the application i.e. present petitioners. 3. Being aggrieved and dissatisfied with their impleadment, petitioners have approached this Court in the instant proceedings. 4. Mr. R.L. Sood, learned Senior Advocate duly assisted by Mr. Learned Court below, taking note of the averments contained in the application referred to herein above, ordered for impleadment of the persons named in the application i.e. present petitioners. 3. Being aggrieved and dissatisfied with their impleadment, petitioners have approached this Court in the instant proceedings. 4. Mr. R.L. Sood, learned Senior Advocate duly assisted by Mr. Arjun Lal, Advocate while inviting attention of this Court to the application having been filed by Food Inspector, for impleadment of Directors (Annexure PC), strenuously argued that no reason whatsoever has been assigned for impleadment of persons named in the application and as such, there was no occasion for the court below to allow the application and as such, same being not sustainable in the eye of law, deserves to be set aside. Mr. Sood, while referring to the documents available on record, further contended that respondent No.3 is a tourist resort being run by the company i.e. Mashorba Resorts Limited and Mr. Atul Lal was General Manager of the company and he was discharging his functions in this capacity on 9.5.2001. He further stated that licence to sell food articles under the Act for the financial year 2010-02 was issued by the competent authority in the name of an employee of the Company i.e. one Smt. Swathshree Bhutani wife of Shri Avneet Singh Bhutani (Annexure PA) and as such, court below erred in accepting the prayer having been made in the application filed by Food Inspector, who out of personal vendetta proceeded to falsely implicate respondent No.3 in the case registered under the provisions of the Act. Mr. Sood further contended that respondent No. 3, Wildflower Hall, commenced its commercial operation on 29.3.2001 and on 5.9.2001, Mr. Atul Lal, respondent No. 3 i.e. the then General Manager, ceased to be an employee of Wildflower Hall as he had resigned from the services of the Company. Mr. Sood, further contended that complaint under Section 16 (1)(a)(i) of the Act was filed by the Food Inspector against Atul Lal and M/s Mashobra Resorts Limited, Chharabra and bare perusal of Form-VI, spot memo and cash receipt relating to the alleged sale, speak only of and identify Mr. Atul Lal, as the person, who was conducting the business of the resort. While referring the prosecution sanction by Chief Medical Officer, Mr. Atul Lal, as the person, who was conducting the business of the resort. While referring the prosecution sanction by Chief Medical Officer, Mr. Sood further contended that the documents relating to alleged purchase of Dal Chini clearly reveal that same mentions Atul Lal alone. While specifically referring to the averments contained in para-10 of the complaint, Mr. Sood contended that in the past also, similar case titled Food Inspector vs. Sameer Miglani and other being Case No. 6-3 of 2004 was registered, wherein principal accused was declared as proclaimed offender and Food Inspector had moved an application for impleadment of Directors stating therein that petitioner were responsible for day-to-day conduct of business and management of Wildflower Hall, Chharabra. Trial court had issued summons against the Directors and they had filed CrMMO No. 12 of 2009 titled as David Mathews and others Vs. State of H.P. and others, against their summoning. This Court, vide judgment dated 30.3.2010 (Annexure PE), while allowing the petition having been filed by the Directors, held that in the absence of any averments made in the complaint that any of the Directors sought to be impleaded was in-charge or responsible for conduct of business of the Company, their summoning as accused was wrong and illegal. Lastly, Mr. Sood, contended that bare conduct of the Food Inspector, who was hell-bent to implead Directors, speaks volumes about his bias towards the petitioner, because as per agreement/Memorandum of Association placed on record, persons named in the application are not the only Directors of the respondent No.3 Hotel, rather, there are three other government nominees on the Board of Directors of respondent No.3 Hotel i.e. Chief Secretary to the Government of Himachal Pradesh, Secretary (Tourism) and Secretary (Finance), to whom, Food Inspector has purposely not sought to be arrayed as accused and as such, application ought to have been dismissed by the court below on this sole ground. 5. Mr. S.C. Sharma, learned Additional Advocate General, while refuting the aforesaid contentions having been made by the learned senior counsel appearing for the petitioners, supported the impugned order passed by the court below and contended that there is no illegality or infirmity in the impugned order and same is based upon correct appreciation of material adduced on record and as such, same deserves to be upheld. Mr. Mr. Sharma, strenuously argued that under Section 17 of the Act, any person responsible to the Company for conduct of business of the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Mr. Sharma, further contended that there is no denial of the fact that Atul Lal was General Manager of Wildflower Hall, Chharabra, Shimla (respondent No. 3) but, Directors named in the application rightly came to be impleaded as accused as they are responsible for the conduct of business of the company. However, Mr. Sharma, learned Additional Advocate General was unable to refute the contention put forth by Mr. R.L. Sood, learned Senior Advocate that apart from the persons named in the application, there are three other government nominees on the Board of Directors. He stated that since day-to-day functioning of the Company is run by the Directors named in the application, there is/was no occasion for the Food Inspector to pray for impleadment of other Directors, who had no connection with the day-to-day working of the Company. Mr. Sharma was also unable to dispute the judgment rendered by this Court in CrMMO No. 123 of 2009, titled as David Mathews and others vs. State of H.P. and others. 6. I have heard the learned counsel for the parties and gone through the record carefully. 7. Careful perusal of complaint under Section 16 (1)(a)(i) of the Act clearly suggests that on the date of alleged incident i.e. 14.3.2000, Food Inspector found Mr. Atul Lal, respondent No. 2 conducting business of the resort. Similarly, it is apparent from record that Food Inspector purchased Dal Chini powder from Mr. Atul Lal, whom he found conducting business of resort. Para-6 of the complaint Annexure PB clearly suggests that the Food Inspector requested Chief Medical Officer, Shimla to give consent under Section 20 of the Act to launch prosecution against Mr. Atul Lal, General Manager of Mashobra Resorts Limited, Chharabra, in the court of law. Complaint as referred to herein above came to be filed in the year 2000, whereafter, an application for impleadment of Directors of M/s Mashobra Resorts Limited, Chharabra (present petitioners) came to be filed on 5.12.2011 i.e. after ten years. Atul Lal, General Manager of Mashobra Resorts Limited, Chharabra, in the court of law. Complaint as referred to herein above came to be filed in the year 2000, whereafter, an application for impleadment of Directors of M/s Mashobra Resorts Limited, Chharabra (present petitioners) came to be filed on 5.12.2011 i.e. after ten years. In the application having been filed by the Food Inspector, it has been nowhere mentioned that how the persons, who are Directors and proposed to be arrayed as accused are/were responsible for conduct of business of respondent No. 3 i.e. Mashobra Resorts Limited. In the application, it has been simply stated that inadvertently, names of Directors of the Resorts could not be added earlier in the complaint. It has been further averred in the application that at the time of taking sample, no person was nominated under Section 17 of the Act with the Local Health Authority, Shimla, District Shimla. 8. Having carefully perused the averments contained in the application, this Court finds considerable force in the arguments of the learned senior counsel representing the petitioners that no cogent and convincing reason for impleadment of Directors of Mashobra Resorts Limited has been assigned in the application, rather, same has been filed in a very cursory manner. 9. Close scrutiny of the impugned order passed by the court below compels this Court to observe that the trial court, while considering the application referred to herein above, failed to apply its mind, rather, it simply, on the basis of averments that the persons named in the application being Directors of the company need to be arrayed as accused, proceeded to allow the application and summoned the petitioners as accused. Court below in a very slipshod manner and by way of a cryptic order, ordered for impleadment of present petitioners, who happened to be the Directors, without verifying/ascertaining the role, if any, played by them, in the conduct of day-to-day business of respondent No. 3. 10. At this stage, it would be profitable to take note of the provisions of Section 17(1) of the Act, which are reproduced as under : 17. 10. At this stage, it would be profitable to take note of the provisions of Section 17(1) of the Act, which are reproduced as under : 17. Offences by companies.—(1) Where an offence under this Act has been committed by a company— (a) (i) the person, if any, who has been nominated under sub-section (2) to be in charge of, and responsible to, the company for the conduct of the business of the company (hereinafter in this section referred to as the person responsible), or (ii) where no person 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 (b) the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence.” 11. Careful perusal of aforesaid provision of law i.e. Section 17 sub-section (1) of the Act reveals that where an offence under the Act is committed by a person nominated under sub-section (2) to be in-charge or responsible to the company for conduct of its business, or where no person is so nominated, other person, who at the time of commission of offence was in-charge and was responsible for the conduct of business of the company, shall be deemed to be guilty of having committed offence under the Act and shall be liable to be proceeded against and punished accordingly. Having perused aforesaid provision of law, this Court finds considerable force in the arguments of the learned senior counsel representing the petitioners that prior to initiation of action, if any, for the commission of offence under this Act, there has to be determination that the company/firm is guilty and thereafter question of punishing the person under the categories referred to in clause (a) of sub-section (1) would arise. 12. 12. Also, a co-ordinate Bench of this Court has specifically and elaborately dealt with the issue in question in CrMMO No. 123 of 2009 titled David Mathews and others vs. Stat of H.P. and others, and held as under : “As a matter of fact Section 17 (1) of the Act is a deeming provision which provides that where an offence under the Act is committed by a Company/Firm, the person In-charge and responsible to it, is held to be guilty, and to be liable should be proceeded against with a view to fix culpability, where offence is committed by a company. Sub-section (2) provides for a nomination so that there is no difficulty in fixing responsibility. Where, however, no person has been nominated, liability is extended to any person who was in-charge of or responsible to the company/firm in the conduct of its business. The prosecution is under obligation to find out whether any person has been nominated in terms of Section 17 (2) of the Act and if a person has been nominated, to proceed against him so that he can be punished if the Company is found guilty. There has to be a determination that a company/firm is guilty, where after the question of punishing the person of any of the categories indicated in clause (a) of sub-section (1) arises. However, reverse is not necessary to be established. The section does not provide that the person incharge of the company should be found guilty before the company is held liable. Merely because a person is not nominated, the liability does not vanish and along with the company the person who was incharge of or responsible to the company in the conduct of the business is rendered liable. Sub-section (1) of Section 17 of the Food Act makes all the persons in-charge of or responsible to the company in the conduct of business liable to the company in the conduct of the business liable to the procedure and process, in case there is no indication in terms of sub-section (2). Where a person is nominated, that person is made liable in terms of clause (a) of Sub-section (1) of Section 17 of the Act. Where a person is nominated, that person is made liable in terms of clause (a) of Sub-section (1) of Section 17 of the Act. The scope is wider where there is no nomination and the person who is in-charge of or responsible to the company in the conduct of business is liable subject, of course, to the proviso which casts onus on the person who claims that the offence was committed without his knowledge and he exercised all due diligence to prevent the commission of such offence. In the instant case, there is no averment made in the complaint that any of the directors or General Manager sought to be impleaded are the Incharge or the responsible person of the Company, in the conduct of the business, therefore, their summoning as the accused persons in the instant case, is wrong and illegal. Precisely, the reading of Section 17 of the Act shows that the Legislature has an intention to proceed against the person responsible at the first instance and only if it is proved that the offence has been committed with the consent etc. of any Director and/or other persons named in sub-section (4), it is thereafter open to the court to proceed against him/them. The intention behind the amendment Act, 1976 which has given the present shape to this section, as it stands now, is apparent and is plainly discernable from its scheme that it is not open to the Court to work against it on any ground more specifically when it is not averred in the complaint that such a person was Manager, Secretary or other officer of the company/firm not being a person nominated under sub-section (2) of the Act, consented to or connived to commit the offence under the Act or is attributable to him/them on account of any neglect on his/their part. [ Pl. see Raj Kumar v. Food Inspector. 2009 (1) Sim.L.C.(359)] Thus, in view of the above position, when there is no allegation of the above nature against the petitioners, it would not be open for the learned trial court to summon them as an accused under the Act. Therefore, summoning them in this case without any such allegation or in absence of any prima facie proof is unsustainable in the eyes of law. The petition is, therefore, allowed and summoning order and proceedings against the petitioners are hereby quashed. Therefore, summoning them in this case without any such allegation or in absence of any prima facie proof is unsustainable in the eyes of law. The petition is, therefore, allowed and summoning order and proceedings against the petitioners are hereby quashed. However, it would be open to the trial court to implead any such persons whether the Directors or the partners of the Company as an accused qua whom the consent, connivance or neglect would be proved within the indictment of sub-section (4) of Section 17 of the Act aforesaid. The petition is accordingly allowed and stand disposed of.” 13. It is quite evident from the aforesaid law laid down by coordinate Bench of this Court that a person responsible under Section 17 can only be proceeded against if it is proved that the offence has been committed with the consent of any of the Directors and/or other persons named in sub-section (4). Leaving everything aside, there is not even a whisper in the complaint that persons proposed to be arrayed as accused being Directors had either consented or connived to commit offence under the Act or same is attributable to him/them on account of any neglect on his/their part. 14. At this stage, it may be noticed that aforesaid judgment has attained finality, as has been fairly admitted by the learned Additional Advocate General during the arguments of the case since no appeal, whatsoever, has been filed against the judgment rendered by this Court. 15. In para-10 of the present petition, factum with regard to passing of aforesaid judgment stands duly mentioned but interestingly, respondent No. 1, while filing reply, has not refuted the same and has virtually admitted the same. 16. Precisely, respondent No. 1 in its reply has denied the averments contained in this para that the Chief Secretary to the Government of Himachal Pradesh, Secretary (Finance) and Secretary (Tourism) are nominees of the Government on the Board of Directors. Respondent No.1 has further stated that there is no authorization/nomination of company under Section 17(3) of the Act and as such, all the Directors, Managers and other persons are deemed to be guilty of offence but there is no explanation that why government nominees i.e. Chief Secretary, Secretary (Finance) and Secretary (Tourism) have not been proposed to be arrayed as accused being Directors of the Company. Once applicant seeks impleadment of Board of Directors on the ground that they being over all in-charge of the company are required to be impleaded as party, all the Directors including government nominees are/were required to be impleaded as accused and in this regard no pick and choose policy can be adopted by the Food Inspector. Affidavit filed by respondent No.1 is totally contrary to the material available on record, rather, there appears to be an attempt on the part of respondent No.1 to mislead this Court by concealing material facts. Though this Court, having perused affidavit, which is totally contradictory to the record, would have proceeded to issue notice to the officer concerned, however, on the persuasion of Mr. Dinesh Thakur, learned Additional Advocate General, this Court restrains itself from taking any harsh action at this stage but the officer concerned is warned to be more cautious and careful in future while dealing with court cases. 17. Consequently, in view of detailed discussion made herein above, present petition is allowed. Order dated 4.1.2012 passed by Chief Judicial Magistrate, Shimla in Case No. 86-3 of 11/02 is quashed and set aside as also the proceedings consequential to the aforesaid order. Pending applications, if any, are disposed of. Interim directions, if any, also stand vacated.