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TMI Blog2002 (1) TMI 1329X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, all these matters are heard together and disposed of by the common judgment. 3. These proceedings are directed against the orders passed by the Magistrates whereby whereby process is issued in the complaints filed by the respondent State alleging violation of provisions of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act ) against the petitioners. 4. Shri Manohar, learned Senior Counsel for the petitioners, submits that the petitioners in Criminal Writ Petition No. 245/1998, as on 1.10.1996, were Directors of Board of Brooke Bond Lipton (India) Limited, which was a Public Limited Company registered under the provisions of Companies Act, 1956 having its registered Office at Calcutta. Under the scheme of amalgamation sanctioned by the High Court of Calcutta and Bombay, the said Company Brooke Bond Lipton (India) Limited was allowed to be amalgamated with Hindustan Lever Limited with effect from 21.3.1997 and Brooke Bond India Limited ceased to be a legal entity from the said date. 5. It is contended by learned Senior Counsel Shri Manohar that in the year 1997, Brooke Bond India Limited, was inter alia engaged in business o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of the provisions of the Act had appointed a nominee for conduct of its business in the State of Maharashtra. The name of the nominee was also informed, i.e. Suresh Narayanan. The Food Inspector has acknowledged receipt of copy of nomination for Shri Suresh Narayanan vide his letter dated 8.1.1998. The said nomination form was valid in terms of Section 17(3) of the Act at the relevant time and establishment was in existence on 29.1.1997 when the samples of the product in question were taken by the Food Inspector as referred to hereinabove. 8. The learned Senior Counsel for the petitioner further submits that in terms of Section 20, the respondent no.1 sought and obtained consent from the Joint Commissioner, Food and Products Administration, Amravati Shri S.S. Urunkar on 8.5.1998. Shri Urankar at the relevant time was the appropriate Authority for grant of sanction for both the regions, i.e. Akola and Amravati and, therefore, he on 6.5.1998 granted consent for prosecution in regard to a similar offence for adulteration of Kissan Mixed Fruit Jam sampled from Akot and Akola. The prosecution has been initiated before the Court of Chief Judicial Magistrate, Amravati be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complaints that any one of these Directors or all of them were responsible for conduct of business of the Company. It is further contended that in the absence of these averments in the complaints and without adding or subtracting anything in the complaints, if same are read as they are, no offence is made out against the Directors under the provisions of the Act. 12. Learned Senior Counsel Shri Manohar further submits that in order to attract provisions of Section 17(1)(ii) or 17(4), the complaints must clearly allege and disclose that such persons or Directors, as the case may be, at the relevant time, were in-charge of conduct of business of the Company or that the offence was committed with their consent, connivance or same was attributable to any neglect on their part. The complaints are totally silent in this regard and in the absence of such averments in the complaints, no offence is made out against the Directors of the Company. Even the documents filed with the complaints do not disclose any case against the Directors for the offence in question. On the contrary, it is revealed that petitioners are joined as accused only because they happened to be Directors o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a final order and, therefore, Magistrate will not have any power to review his own order, which is final in nature as the Code of Criminal Procedure does not confer any power of review on the criminal Court. It is contended by the learned Senior Counsel for the petitioners that in the circumstances, the impugned orders of issuance of process and complaints need to be quashed and set aside. The last contention canvassed by learned Senior Counsel Shri Manohar is that other Directors of the Company, such as G.V.Krishna Rao, S.K. Sinha, David R. Thyman, Udipi Mahesh Rao and Damodaran Nair are also similarly situated and allegations against them in the complaints are also identical in nature. Those allegations in the complaints do not make out any offence, which is charged against these Directors and, therefore, orders of issuance of process issued by the Magistrates in respect of these Directors also may be quashed and set aside. 14)In order to substantiate above contentions, reliance is placed by learned Senior Counsel Shri Manohar on the judgments of Apex Court and High Courts in Municipal Corporation of Delhi v. Ram Kishan Rohtagi and others , Pepsi Foods Ltd. v. Special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny, were made accused in the present prosecution since the offences were committed by the Company in view of provisions of Section 17 of the Act. It is further canvassed by the learned Additional Public Prosecutor that since there was no proper nomination, the Food Inspector noticed during the course of investigation that the petitioners were the persons responsible and in-charge of the Company and, therefore, they were made accused in the complaints. The documents accompanying the complaints clearly substantiate the allegations in the complaints including sanction given by the Competent Authority. 17. It is further submitted by the learned Additional Public Prosecutor that the petitioners have invoked inherent powers of this Court under Section 482 of Code of Criminal Procedure. However, this power is required to be exercised by this Court in the exceptional circumstances. Whether any offence at this stage has been made out or whether accused are liable to be convicted or defence available to the accused cannot be considered at this interlocutory stage. There is a power with the Magistrate to drop the proceedings if he is satisfied on considering the complaint that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the matter, which need to be mentioned at the outset. 21. In Criminal Writ Petition No. 245/98, it is not in dispute that at the relevant time, petitioner nos. 1 to 8 and 11 were Directors of the Company, which was then known as Brooke Bond Lipton India Limited and the said Company with effect from 21.3.1997 stood amalgamated with Hindustan Lever Limited and ceased to be a legal entity. On 29.1.1997 the Food Inspector visited the establishment of Ramesh Shankar Jain, i.e. M/s. Jain Bandhu, Chitra Chauk, Amravati. The product from which sample was drawn was Kissan Mixed Fruit Jam . The said product having batch No. 60412-A-2, net weight 500 grams and date of packaging as December 1996 was purchased. The sample was forwarded to the Public Analyst on 30.1.1997. The report of Public Analyst was received on 10.3.1997. The Public Analyst opined that sample of Kissan Mixed Fruit Jam contains sulphur dioxide 164 ppm, which contravenes Rule 55(6) of the Prevention of Food Adulteration Rules, 1955. The Food Inspector sought consent for prosecution, which was granted on 8.5.1998 by the competent Authority, i.e. Joint Commissioner of Foods and Drugs Administration, Amravati. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Jayantilal Dwarkadas situated at Akola. The sample was taken from the product Kissan Mixed Fruit Jam , which was purchased from M/s. Brooke Bond Lipton India Limited through the clearing Agent M/s. Universal Clearing Agencies, Mishra Godown, Katol Road, Fetri, Nagpur. The batch number of product is 60412-A-2 and same was packaged in December 1996. The net weight of the product was 500 grams. The same was forwarded to the Public Analyst on 31.1.1997. The report dated 10.3.1997 of the Public Analyst shows that the sample contains sulphur di-oxide more than the permissible limit, which is in contravention of Rule 55 of the Prevention of Food Adulteration Rules, 1955. The investigation was carried out by the Food Inspector. Necessary information was obtained from the Company in question. The consent for prosecution was granted by the competent Authority, i.e. Joint Commissioner of Foods and Drugs Administration, Amravati on 21.12.1998. The complaint was filed on 6.1.1999. On the said complaint, Chief Judicial Magistrate, Akola passed the impugned order of issuance of process on 6.1.1999 for contravention of provisions of Section 7(i) read with Section 2(ia)(a) punishable under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Clearing Agencies, Mishra Godown, Katol Road, Fetri, Nagpur. The batch number of product is 60711-A-1 and same was packaged in November 1996. The net weight of the product was 500 grams. The same was forwarded to the Public Analyst on 20.2.1997. The report dated 26.3.1997 of the Public Analyst shows that the sample contains sulphur di-oxide more than 40.00 parts per million, which is in contravention of Rule 55 of the Prevention of Food Adulteration Rules, 1955. The investigation was carried out by the Food Inspector and necessary information was obtained from the Company in question. The consent for prosecution was granted by the competent Authority, i.e. Joint Commissioner of Foods and Drugs Administration, Amravati on 14.10.1998. The complaint was filed on 4.1.1999. On the said complaint, Chief Judicial Magistrate, Akola passed the impugned order of issuance of process on 4.1.1999 for contravention of provisions of Section 7(i) read with Section 2(ia)(a) and Section 7(i) read with Section 2(ia)(k) and Section 7(v) read with Rule 55(6) punishable under Sections 16 and 17 of the Act and validity of same is called in question in these proceedings. The allegations made against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1996. The report dated 23.8.1996 of the Public Analyst shows that the sample contains sulphur di-oxide more than the permissible limit, which is in contravention of Rule 55(6) of the Prevention of Food Adulteration Rules, 1955. The investigation was carried out by the Food Inspector and necessary information was obtained from the Company in question. The consent for prosecution was granted by the competent Authority, i.e. Joint Commissioner of Foods and Drugs Administration, Amravati on 12.5.1999. The complaint was filed on 9.6.1999. On the said complaint, Chief Judicial Magistrate, Yavatmal passed the impugned order of issuance of process on 9.6.1999 for contravention of provisions of Section 7(i) read with Section 2(ia)(a) punishable under Section 16(1)(a)(i), Section 7(v) read with Rules 54 and 55(6) punishable under punishable under Section 16(1)(a)(ii) and Section 17 of the Act and validity of same is called in question in these proceedings. The allegations made against the Directors (accused) of the Company are identical in nature as in para (20) of Criminal Writ Petition No. 245/1998. 28. As far as Criminal Application No. 1283/1999 is concerned, undisputed facts ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminal proceedings at the initial stage. However, when the complaint if it is accepted to be correct on its face value, does not make out an offence the accused charged with, then in order to prevent abuse of process of Court, this Court is entitled to exercise power under Section 482 of Code of Criminal Procedure. Similarly when there are no averments in the complaint to connect the accused with the offence they are charged, the inherent powers of this Court can be exercised to prevent mis-carriage of justice. Adverting to the present proceedings under Section 482 of Code of Criminal Procedure, it needs to be seen as to whether there is any act committed by the Directors to draw an inference that they could also be vicariously liable or not for the commission of the offences and if on the close scrutiny of the allegations in the complaint, it is found that allegations and averments in the complaint connect Directors with the offence, then the question of exercising power under Section 482 of Code of Criminal Procedure does not arise. However, if the allegations are such that they do not make out any offence against the Directors for which they are charged and still process is issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent in this connection had urged that accused had a right to put this argument at the time of framing of charges and, therefore, this Court should not interfere with the order of Magistrate taking cognizance at this stage. This argument, however, does not appeal to us inasmuch as merely because an accused has a right to plead at the time of framing of charges that there is no sufficient material for such framing of charges as provided in Section 245 of Criminal Procedure Code, he is debarred from approaching the Court even at the earliest (sic earlier) point of time when the Magistrate takes cognizance of the offence and summons the accused to appear to contend that the very issuance of order of taking cognizance is invalid on the ground that no offence can be said to have been made out on the allegations made in the complaint petition. It has been held in a number of cases that power under Section 482 has to be exercised sparingly and in the interest of justice. But allowing the criminal proceedings to continue even where the allegations in the complaint petition do not make out any offence would be tantamount to an abuse of process of Court and, therefore, there cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder sub-section (2) of Section 17 to be in-charge of and responsible to the Company for the conduct of business of the Company shall be guilty of offence and shall be liable to be proceeded with and punished accordingly. - 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 business of the Company, shall be deemed to be guilty of offence and shall be liable to be proceeded against and punished accordingly as contemplated under Section 17(1)(a)(i)(ii) of the Act. In addition to persons referred hereinabove, the Directors of the Company can also be proceeded against and punished according to law. When an offence under this Act has been committed by the Company and it is proved that offence has been committed with the consent or connivance of or is attributable to or any neglect on the part of any Director, Manager, Secretary or other Officers of the Company, such Directors and other persons referred to shall be deemed to be guilty of that offence and shall also be liable to be proceeded against and punished accordingly as contemplated under sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the part of such Directors. Similarly, the person nominated may or may not be a Director of the Company. He can be anybody whomsoever the Company feels it appropriate to nominate. Similar is the case in respect of person in-charge of and responsible to conduct of business of the Company. However, by virtue of sub-section (4) of Section 17, Directors of the Company are also liable to be prosecuted in the contingencies referred to in sub-section (4) notwithstanding anything contained in sub-section 1(a)(i)(ii) of Section 17 of the Act. However, in order to bring home guilt, averments, allegations or statements to that extent in this regard must find place in the complaint, which is filed by the Food Inspector in the competent criminal Court after due investigation. The complaint must prima facie demonstrate nexus between Director and crime committed within the parametres of sub-section (4) of Section 17. What is expected is at least the allegations in the complaint that offence is committed under the provisions of the Act with the consent or connivance of such Director or same is attributable to any neglect on the part of such Director. In the absence of such allegations, it would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the Directors in this respect. In the absence thereof, there is no nexus demonstrated in the complaint between these Directors and commission of offence under the provisions of the Act. The allegations in para (20) of the complaint, even if accepted in toto, in my opinion, would not prima facie make out any offence under the provisions of the Act muchless under Section 7 of the Act. 39. As observed hereinabove, in order to proceed against the Directors, particularly in view of sub-section (4) of Section 17, their prima facie involvement and connection with the crime must appear in the complaint in the form of allegations, statements or averments and then question of proving them would come at the stage of evidence. However, in the instant case, as observed hereinabove, in the complaints, there are no such allegations or averments and for want of such allegations or averments, it is not possible even to hold prima facie that nexus between the crime and Directors is made out even if recitals in the complaints are accepted. In a situation like this, it will not only be futile to allow prosecution to continue and proceed against the petitioners, but the same would be abuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce nor anything to show, apart from the presumption drawn by the complainant, that there is any act committed by the Directors from which a reasonable inference can be drawn that they could also be vicariously liable. In these circumstances, therefore, we find ourselves in complete agreement with the argument of the High Court that no case against the Directors (accused nos. 4 to 7) has been made out ex facie on the allegations made in the complaint and the proceedings against them were rightly quashed. Similarly, in para (8) of the judgment in the case of State of Haryana v. Brij Lal Mittal and others , the Apex Court has observed thus : Nonetheless, we find that the impugned judgment of the High Court has got to be upheld for an altogether different reason. Admittedly, the three respondents were being prosecuted as directors of the manufacturers with the aid of Section 34(1) of the Act, which reads as under : OFFENCES BY COMPANIES : (1) Where an offence under this Act has been committed by a company, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Directors of the Company, there is no allegation to indicate even prima facie that offence is committed with consent or connivance of them or same is attributable to neglect on their part. Since the complaints are totally silent on this issue, in my opinion, there is no legal impediment in quashing the impugned orders. 44. Faced with the similar situation in the case of R. Banerjee and others v. H.D. Dubey and others , the Apex Court in para (7) of the judgment observed thus : It would then be necessary for the prosecuting agency to show from the averments made in the complaint that the case falls within sub-section (4) of Section 17 of the Act. If the prosecuting agency fails to show that the offence was committed with the consent or connivance of any particular Director, Manager, Secretary or other Officer of the Company or on account of the negligence of any one or more of them, the case set up against the appellants cannot be allowed to proceed. Similarly, in para (9) of the said judgment, the Apex Court observed thus : It will thus be seen that there is no allegation in the complaint, which would bring the case within the mischief of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow such prosecution to proceed against the accused particularly in view of ratio laid down by the Apex Court in the above referred judgment. The only allegations made against the petitioners for the offences in question are in the specific paragraph of the complaints as observed hereinabove. What is stated is that the complainant further charges accused for committing offence by manufacturing, for sale, distributing for sale, stocking for sale and selling adulterated food article in contravention of aforesaid provisions of the Prevention of Adulteration Act, 1954 and rules thereunder. The complainant is totally silent in regard to allegations in respect of contingencies mentioned in sub-section (4) of Section 17 of the Act nor even makes out a prima facie case for the offences charged. In such situation, in my opinion, the contention canvassed by the learned Additional Public Prosecutor that Magistrate may be permitted to pass appropriate orders at the time of recording of pre-charge evidence cannot be accepted and in view of the facts and circumstances of the present case, the ratio laid down by the Apex Court in P. Rajarathinam v. State of Maharashtra and others is not of any hel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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