Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 1835 (HP)

T. Banambar Patra v. State Of H P

2019-12-03

CHANDER BHUSAN BAROWALIA

body2019
JUDGMENT Chander Bhusan Barowalia, J. - The present petition, under Section 482 of the Code of Criminal Procedure (hereinafter to be called as "the Code"), has been maintained by the petitioner for quashing of order dated 03.09.2015 and subsequent orders, passed by learned Judicial Magistrate 1st Class, Court No. 3, Shimla, District Shimla, H.P, in case No. 282-3 of 17/2002, whereby after finding prima facie case against the present petitioner, the summons were issued to him. 2. Briefly stating the facts, giving rise to the present petition are that on 19.06.2002, around 3:00 p.m., the Food Inspector/complainant (hereinafter to be called as "the complainant"), Shimla, inspected the premises of M/s Toshali Resort, Shilon Bag, Shimla and found Sh. Joginder Boipoi conducting the business of the said restaurant. He was having about 5 Kg Dal Arhar in a plastic storage drum of having capacity of 20 Kg for preparation of food articles for sale to the general public. The complainant issued a notice to Sh. Joginder Boipoi regarding taking of samples of Arhar Dal for the purpose of analysis and purchased 600 gms of Dal on payment of Rs. 16.80/- as a sample for analysis. The purchased Dal was divided into three equal parts and put into three neat clean and dry glass bottles. The bottles were corked, lebeled and wrapped into a thick paper and paper slip bearing code and Sl. No. of LHA, District Shimla S-1/3553 was affixed on the top of each bottle. The signatures of the accused were taken on paper slip. Witnesses, Sh. Dhyan Singh and Sh. Ashok Kumar were present on the spot throughout the whole process of seizing the sample. Punchnama was prepared on the spot, which was signed by the witnesses, accused and by the complainant. The samples of Dal were sent to Public Analyst, Kandaghat and on analysis, the samples were found to be adulterated, vide report No. 159, dated 26.07.2002, which reads as under: " The contents of the sample contain yellow synthetic food colour "Tartrazine" whereas dal arhar (Food Grain) should be free from added colour matter and hence the same is adulterated". On the basis of inspection of premises on 19.06.2002 by the present complainant, vide which, sample of dal Arhar was purchased for the purpose of analysis and report of public analyst dated 26.07.2002, the learned Court below summoned the present petitioner. On the basis of inspection of premises on 19.06.2002 by the present complainant, vide which, sample of dal Arhar was purchased for the purpose of analysis and report of public analyst dated 26.07.2002, the learned Court below summoned the present petitioner. Feeling aggrieved and dissatisfied from the orders dated 02.06.2010, 18.02.2010 23.05.2011 and 30.06.2011, the petitioner preferred criminal revision before the learned Sessions Judge, Shimla, which was dismissed vide order dated 12.09.2011. Consequently, the petitioner challenged the order of learned Sessions Judge, Shimla, before this Court and this Court vide judgment dated 01.07.2014 quashed and set aside the impugned orders with the observations that prior to issuance of process, learned trial Court did not apply its mind and directed the learned trial Court to pass fresh orders assigning reasons, on the application dated 12.01.2010, so filed by the complainant. However, learned trial Court vide order dated 03.09.2015 and subsequent orders, again summoned the petitioner, being Managing Director of M/s Toshali Resort, Shilon Bagh, as well as respondent No. 2, for commission of offence punishable under Section 16 (1) (a) (i) of Prevention of Food Adulteration Act (hereinafter to be called as the "Act"). Hence, the present petition. 3. Mr. C.N. Singh, learned counsel for the petitioner has argued that the summoning order issued by the learned Magistrate earlier was quashed by this Court and now in the same fashion the present summoning order has been issued, which is also required to be quashed, since the petitioner is Managing Director of the Company and no order can be passed against him, until and unless the Magistrate for the reasons comes to the conclusion that act is done under his supervision. Learned counsel for the petitioner has brought the attention of this Court to the orders passed by learned Magistrate from time to time, as well as the judgments (Annexures P-2 and P-4) passed by this Court. He has also cited the law settled in Mr. T.K. Sibal and others vs. Food Inspector and others, Cr. MMO No. 116 of 2012, decided on 21.05.2018 and argued that since this Court has already held in Cr. MMO No. 190 of 2011 that the summoning orders were passed without application of mind, the present petition may be allowed and impugned order dated 03.09.2015 alongwith subsequent orders may be quashed and set aside. 4. On the other hand, Mr. MMO No. 116 of 2012, decided on 21.05.2018 and argued that since this Court has already held in Cr. MMO No. 190 of 2011 that the summoning orders were passed without application of mind, the present petition may be allowed and impugned order dated 03.09.2015 alongwith subsequent orders may be quashed and set aside. 4. On the other hand, Mr. Raju Ram Rahi, learned Deputy Advocate General has argued that the petitioner was continuously evading the service of summons and when he was served by way of bailable warrants, he maintained the present petition. As far as the orders passed by learned Court below are concerned, he has argued that the same were passed after due application of mind and since the Company has not nominated any person to be in-charge, as required under Section 17 (1) (a) of the Act, the Managing Director who is supposed to be the overall in-charge of the affairs to the Company, is definitely liable to be prosecuted as per the provisions of law and the learned Court below has not committed any illegality by issuing summons to the present petitioner. 5. To appreciate the arguments of learned counsel for the parties, this Court has gone through the relevant provisions of Section 17 of the Prevention of Food Adulteration Act, 1954, sub-clause 1 and 2 whereof reads 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. (2) Any company may, by order in writing, authorise 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, alongwith the written consent of such director or manager for being so nominated ..... ..... ....." 6. As per Section 17(2) every person whosoever at the time of the offence was in charge of, and was responsible to, the company for the conduct of the business of the company is liable until and unless he proves in the Court that offence was committed without his knowledge. However, in the instant case, the petitioner has failed to prove that he was not liable for the conduct of the business by leading cogent evidence and he has not proved before the learned Court below that he was not having knowledge about the commission of offence or he exercised all due diligence to prevent the commission of such offence. In these circumstances, the order passed by learned Court below is just, reasoned and needs no interference. 7. In view of what has been discussed hereinabove, the present petition, which sans merit, deserves dismissal and is accordingly dismissed. Pending application(s), if any, also stands dismissed. Parties through their Counsel are directed to appear before the learned Court below on 19th December, 2019.