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TMI Blog2018 (3) TMI 1061X X X X Extracts X X X X X X X X Extracts X X X X ..... fence in Complaint Case No. 20M of 2003 are being disposed of by the common judgment. 3. The petitioners, invoking inherent jurisdiction of the Court, under Section 482 of the Code of Criminal Procedure, 1973, seek quashing of the cognizance order dated 28.07.2003 passed by the learned Sub Divisional Judicial Magistrate, Patna in Complaint Case No. 20M of 2003 as well as setting aside the entire criminal proceedings. 4. A brief fact giving rise to the case is that a complaint was filed by the Civil Surgeon-cum-Chief Medical Officer, Patna in the court of Sub Divisional Judicial Magistrate, Patna against the Managing Director, all Directors, Chairman, all Administrative Officers and Production Incharge of the company, namely, Reckitt Benckiser (India) Pvt. Ltd. situated at Kolkatta, for committing offence, under Section 16(1)(A) of the Prohibition of Food Adulteration Act, 1954 (hereinafter referred to as the „Act‟). On 19.02.2003, the Food Inspector, Patna, in exercise of his powers, under Section 10 of the Act, collected 03 cans of Barley Powder of 400 grams each from Shalimar Cold Stores, a C. & F. of the company in Patna and sent to public analyst for its analysis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooking the fact whether bailable warrant was executed to the accused persons, issued non-bailable warrant of arrest and on the same day, contrary to the express mandate of Sections 82 and 83 of the Code of Criminal Procedure, also initiated proceeding to declare the accused as proclaimed offenders on 18.03.2017, by issuing permanent „Warrant of Arrest‟. Since one of the accused, in the complaint, is captioned as "All administrative Officers" of the company, so Kolkata Police, on 12.05.2017, visited Regional Office in Kolkata and served the permanent warrant on Amrit Bangur, Regional Commercial Manager (East), the petitioner of Cr. Misc. No. 36986 of 2017, who performs finance functions of the company but has no administrative role, and after arresting him produced before the Judicial Magistrate at Kolkata who granted bail to appear before the trial court. The learned counsel further submits that Amrit Bangur had joined the company only on 30.01.2017 and the purported offence was committed in 2003 so at that very point of time, petitioner Amrit Bangur was not related or concerned with affairs of the company in any manner; moreover the company by that time was unaware of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be vicariously liable for the offence because the company is a juristic person and it has its own respectability. The Apex Court arrives at a conclusion that for maintaining the prosecution under Section 141 of the N.I.Act, arraigning of a company as an accused is imperative. Learned counsel further places reliance to the case of S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla and Another reported in (2005) 8 SCC 89. He submits that in the said judgment, the Apex Court has considered that at the time of taking cognizance of offence, the Magistrate requires to look into the averments made in the complaint that at the time of offence committed whether the person accused was in charge of and responsible to the company for the conduct of its business; this averment is an essential requirement, so if the answer is in negative, so merely being a Director of the company is not sufficient to make him liable for prosecution under the N.I.Act. A Director in the company cannot be deemed to be in charge of and responsible for the conduct of its business. It is submitted that it is the Board of Directors, who assigns particular functions to the Directors, as per the memorandum and articles of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no allegation of any adulteration in the product, only allegation is of misbranding as "best before date" was not printed and the complaint was filed in 2003 with incomplete address, summons and warrant not served for more than 14 years, so the present case should have been withdrawn by the concerned authority. 10. Mr. Aman Lekhi, learned senior counsel appearing on behalf of the petitioner Amrit Bangur in Cr. Misc. No. 36986 of 2017, adopting the argument advanced by Mr. P.Chitambaran, learned senior counsel, submits that Amrit Bangur was not associated with the company in the year 2003, at that time he was a child and joined the company only on 30.01.2017, so in any case, he cannot be held liable for the affairs of the company at the relevant point of time. 11. Mr. Satyavrat Verma, learned counsel appearing on behalf of the State, concedes that unless the company is arraigned as accused, vicarious liability cannot be fastened to other officers of the company, however, he raised objection relating to locus standi of the petitioner no. 1 in Cr. Misc. No. 24952 of 2017 for the reason that as the company is not an accused, so no cause of action to file the quashing application. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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 manger as the person responsible, alongwith the written consent of such director or manager for being so nominated. (3) The person nominated under sub-section(2) shall, until- (i) further notice cancelling such nomination is received from the company by the Local (Health) Authority; or (ii) he ceases to be a director or, as the case may be, manager of the company; or (iii) he makes a request in writing to the Local (Health) Authority, under intimation to the company, to cancel the nomination which request shall be complied with by the Local (Health) Authority, whichever is the earliest, continue to be the person responsible: Provided that where such person ceases to be a director or, as the case may be, manager of the company, he shall intimate the fact of such cesser to the Local (Health) Authority: Provided further that where such person makes a request under clause (iii), the Local (Health) Authority shall not cancel such nomination with effect from a date earlier than the date on which the request is made. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada; (2000) 1 SCC 1: 2001SCC (Cri) 174 is overruled with the qualifier as stated in para-51. The decision in Modi Distillery; (1987) 3 SCC 684: 1987 SCC (Cri) 632 has to be treated to be restricted to its own facts as has been explained by us hereinabove". 15. In S.M.S.Pharmaceuticals Ltd. (supra), the Apex court has made elaborate and vivid description on the position of the vicarious criminal liability on a person connected with the company, para-18 of the said judgment is referred to hereinbelow to elucidate the concept: "18. To sum up, there is almost unanimous judicial opinion that necessary averments ought to be contained in a complaint before a person can be subjected to criminal process. A liability under Section 141 of the Act is sought to be fastened vicariously on a person connected with a company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability. A clear case should be spelled out in the complaint against the person sought to be made liable. Section 141 of the Act contains the requirements fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which have been indicated hereinabove, and relying instead on the decision of Rangachari case; (2007) 5 SCC 108: (2007) 2 SCC (Cri) 460, the facts of which were entirely different from the facts of this case. It is now well established that in a complaint against a company and its Directors, the complainants has to indicate in the complaint itself as to whether the Directors concerned were either in charge of or responsible to the Company for its day-to-day management, or whether they were responsible to the Company for the conduct of its business. A merely bald statement that a person was a Director of the Company against which certain allegations had been made is not sufficient to make such Director liable in the absence of any specific allegations regarding his role in the management of the Company." 52. Having considered the matter in its totality and also having regard to the fact that Somesh Dahale had been nominated under sub-section (2) of Section 17 of the 1954 Act to be a person in charge of and responsible to the Company for the conduct of its business, we are of the view that the appeals have to be allowed". 18. In the present case, only the Managing Director, all ..... 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