1) By this application under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”), the applicants-original accused No. 2 to 4, seek quashing of Criminal Case No.1821 of 2011, pending in the Court of the learned Chief Judicial Magistrate, Anand.
2) The respondent No.2-Food Inspector lodged a complaint in the Court of the learned Chief Judicial Magistrate, Anand on 26.5.2011 stating that on 20.5.2010 he had gone to Avenue Super Marts Pvt. Ltd at Vallabh Vidhyanagar and had collected samples of Neo Fresh Namkin Tikha Mix (Pack) 400 grams in accordance with the provisions of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as “the Act”) and the rules framed thereunder. That the samples were thereafter sent for analysis to the Public Analyst and as per the opinion of the Public Analyst, the product was declared to be misbranded under sections 2(ix)(g) and 2(ix)(k) of the Act as the packets of the samples did not mention the ingredients of the product contained therein and, as such, constituted an offence punishable under section 16 of the Act. Pursuant to the said complaint, the learned Chief Judicial Magistrate issued summons to the accused, including the applicants herein.
3) Mr. K. H. Parekh, learned advocate for the applicants invited attention to the facts of the case to submit that samples of the article of food, viz. “Neo Fresh Namkin Tikha Mix (Pack)” were taken on 20.5.2010, and a part thereof was sent for analysis. The report of the Public Analyst was obtained on 28.6.2010 wherein it was stated that the food article was misbranded as the ingredients of the food article in question were not mentioned. Referring to section 17(1)(a)(ii) of the Act, it was pointed out that where an offence under the Act has been alleged to have been committed by a company and no person has been nominated under sub-clause (ii) of clause (a) thereof, 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, shall be deemed to be guilty of the offence and shall be liable to be punished accordingly. It was submitted that, therefore, necessary averments to the effect that at the relevant time when the offence is alleged to have been committed, the applicants herein were in charge of and responsible to the company for the conduct of the business of the company, are required to be reflected in the complaint in question.
4) Attention was also invited to sub-section (4) of section 17 of the Act, which provides that notwithstanding anything contained in the foregoing sub-sections, where an offence under the Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company not being a person nominated under sub-section(2), such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. It was submitted that in the present case, there is no allegation to the effect that the offence has been committed with the consent or connivance of or is attributable to, any negligent act on the part of the applicants herein. It was submitted that on a combined reading of section 17(1) and section 17(4) of the Act, the requirement under law is that there should be a specific allegation to the effect that the person concerned was in charge of and responsible for the affairs of the company and that the offence had been committed with the consent or connivance of or was attributable to any negligent act on his part. It was submitted that in the present case, neither of the aforesaid two requirements are satisfied and, as such, the complaint in question is required to be quashed qua the applicants herein. In support of his submissions, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Pepsico India Holdings Pvt. Ltd. v. Food Inspector & Another, 2010 (2) FAC 310 as well as the decision of this High Court in the case of Siraj Azmat Chaudhary & Ors. v. State of Gujarat & Another, 2008 (1) FAC 402.
5) The learned advocate further drew the attention of the court to a copy of the Form 32 annexed as Annexure-E to the application to submit that insofar as the first applicant is concerned, he had resigned as a Director of the Company with effect from 6.8.2009 and, as such, on the material day when the sample was collected by the second respondent, the first applicant was not a director of the company and as such could not even otherwise have been arraigned as an accused. It was, accordingly, submitted that on the allegations made in the complaint, no offence can be said to have been made out against the applicants herein and, as such, the complaint is required to be quashed qua the present applicants.
6) Opposing the application, Ms. Krina Calla, learned Additional Public Prosecutor has submitted that on a plain reading of the allegations made in the complaint, an offence under the relevant provisions of the Act is clearly made out. It was submitted that at this stage, when the trial is still to proceed, there is no warrant for intervention in exercise of powers under section 482 of the Code and that if at all no case is made out against the applicants; they would be acquitted at the end of the trial. It was submitted that there are specific averments made against the applicants in paragraph-13 of the complaint and, as such, this court may not exercise discretion in their favour.
7) In the backdrop of the aforesaid facts and contentions it may be germane to refer to certain statutory provisions. Section 17 of the Act bears the heading “offences by companies”. Sub-section (1) thereof provides that where an offence under the Act has been committed by a company, if any person 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 or where no such person has been 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 guilty of the offence and shall be liable to be proceeded against and punished accordingly.
8) Thus, what section 17 contemplates is that in case a person is nominated under subsection (2) of section 17, to be in-charge of and responsible to the company for the conduct of the business of the company, that person would be deemed to be guilty of the offence which is alleged to have been committed by the company. However, if no such person has been nominated, every person, who at the time when the offence was committed, was in charge of, and responsible to the company for the conduct of the business of the company shall be deemed to be guilty of the offence and be liable to be proceeded against. Thus, for the purpose of invoking section 17 against a Director, it is necessary that such person, was at the relevant time when the offence was committed was in- charge of, and responsible to the company for the conduct of the business of the company.
9) The Supreme Court in the case of Pepsico India Holdings Pvt. Ltd. v. Food Inspector & Another (supra) has held that it is now well established that in a complaint against a company and its directors, the complainant 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 mere bald statement that a person was the director of the company against which certain allegations have been made is not sufficient to make such director liable in the absence of any specific allegation regarding his role in the management of the company. Similar view has been taken by this court in the case of Siraj Azmat Chaudhary & Ors. v. State of Gujarat & Another, (supra), wherein the court found that there were no allegations in the complaint that the offence had been committed with the consent/connivance/negligence of the directors, that is, the applicant therein other than the nominated person and, accordingly, held that the allegations made in the complaint did not make out the case under subsection (4) of section 17 of the Act and quashed the complaint.
10) The facts of the present case are, therefore, required to be examined in the light of the law laid down in the aforesaid judicial pronouncements.
11) A perusal of the complaint in question shows that in paragraphs 1 to 12 therein, the complainant has mentioned the procedure followed by him for the purpose of taking samples and for obtaining the report of the Public Analyst. The only allegations made against the accused are contained in paragraph 13 of the complaint, wherein insofar as the applicants herein are concerned, it has been stated that they are directors of Avenue Super Marts Pvt. Ltd. Except for the said averment there are no allegations made against the applicants herein nor has any role been attributed to them in the commission of the alleged offence. In the entire compliant there is not even a whisper to the effect that on the material day, the applicants herein were in charge of and responsible to the company for the conduct of its business as contemplated under section 17(1) of the Act.
12) Apart from the aforesaid, there is no allegation to the effect that the offence has been committed with the consent or in connivance of or is attributable to any negligent act on the part of the applicants herein. Sub-section (4) of section 17 of the Act provides that where any offence has been committed by a company and it is proved that the offence has been committed with the consent or in connivance of or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, not being a person nominated under sub- section (2), such director, manager, secretary or other officer is also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Under the circumstances, the requirements of section 17(4) are clearly not satisfied.
13) In the light of the aforesaid discussion, on a plain reading of the allegations made in the complaint, no offence as alleged can be said to have been made out against the present applicants. It is settled legal position, as held by the apex court in a catena of decisions, that if on a reading of the complaint in its entirety and taking the allegations made therein to be true, if no offence is made out, the inherent powers of the High Court under section 482 of the Code can be invoked for quashing of such complaint with a view to prevent abuse of the process of court. This is, therefore, a fit case for exercise of powers under Section 482 of the Code.
14) For the foregoing reasons, the application succeeds and is, accordingly, allowed. The complaint, being Criminal Case No.1821 of 2011, is hereby quashed and set aside qua the present applicants. Rule is made absolute accordingly.
(HARSHA DEVANI,J.)
Vahid