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.3 to 7 seek quashing of Criminal Case No.2847 of 2011 (old Criminal Case No.3 of 2010), pending in the court of the learned Chief Judicial Magistrate First Class, Vadodara.
2) The respondent No.2-Food Inspector lodged a complaint in the Court of the learned Chief Judicial Magistrate First Class, Vadodara against the present applicants and other accused persons under the provision of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as “the Act”) stating that on 12.10.2009, in the course of discharge of his duties, he had gone to one Avenue Super Marts Pvt. Ltd. and had collected samples of food article being Jaipuri Mukhvas, (Chandan Mouth Freshner) Co. seal pack 140 gm. plastic bottle, bearing batch No.114 and Pkg. Month 10-2009 and Exp. Month:09-2010. After following due procedure in accordance with law, he had sent a part of the sample of food article for analysis to the Public Analyst. As per the report of the Public Analyst, the sample of Jaipuri Mukhvas (Chandan Mouth Freshner) was adulterated under the provision of section 2(ia)(j) of the PFA Act, 1954, as the sample [other ingredients (except Sugar boiled confectionary), contains synthetic food colour and falls under the category of Proprietary Food, in which the addition of synthetic food colour is prohibited which contravenes the provision of Rule 29 of Prevention of Food Adulteration Rules, 1955. It was, accordingly, alleged that there is a contravention of the provisions of section 2(ia)(j) read with section 7(i)(v) of the Act and rule 29 of the Prevention Food Adulteration Rules, 1955 (hereinafter referred to as “the Rules”) which is an offence punishable under section 16(1)(a)(ii) of the Act. Pursuant to the lodging of the aforesaid complaint, the learned Magistrate directed issuance of summons against all the accused, including the applicants herein.
3) Mr. K.H. Parekh, learned advocate for the applicants drew the attention of the court to the provisions of section 17(1)(a)(ii) of the Act to point 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 (i) of clause (a) thereof, every person who at the time when 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 under the circumstances, necessary averments to the effect that the applicants herein were in charge of and responsible to the company for the conduct of the business of the company at the relevant time, were required to be reflected in the complaint in question.
3.1) The attention of the court was also invited to sub-section (4) of section 17 of the Act, which provides that notwithstanding anything contained in the earlier 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 officers 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 neglect act on the part of the applicants herein. It was contended that on a conjoint reading of sub-section (1) and sub-section (4) of section 17 of the Act, the requirement under the 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.
3.2) 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 & Anr., 2010(2) FAC 310 as well as the decision of this High Court in the case of Siraj Azmat Chaudhry & Ors. v. State of Gujarat & Anr., 2008 (1) FAC 402.
3.3) Inviting attention to Form No.32 annexed at Annexure-E to the application, it was pointed out that insofar as the first applicant is concerned, on the relevant day, he was not a Director of the Company and as such, he could even otherwise not have been arraigned as an accused. It was submitted that on a plain reading of the allegations made in the complaint, it is apparent that no offence is made out against the applicants herein and, as such, the complaint is required to be quashed qua the present applicants.
4) Vehemently opposing the application, Mr. Nilesh Pandya, learned advocate for the second respondent- Food Inspector submitted that for the purpose of compliance with the provisions of section 17(1) of the Act, the second respondent had issued a notice to the applicants herein calling for the details as required under section 17(2) of the Act and had, thereafter, lodged the complaint on the basis of the information received from the applicants herein. It, therefore, does not lie in the mouth of the applicants to now submit that the requirements of section 17(1) of the Act are not complied with. It was submitted that the information as regards the persons responsible for the affairs of the Company as contemplated under section 17 of the Act, having been provided by the applicants herein and the complaint having been filed pursuant thereto, the offence as alleged against the applicants herein is clearly made out and, as such, there is no warrant for intervention in exercise of powers under section 482 of the Code. It was submitted that insofar as the decision of the Supreme Court in the case of Pepsico India Holdings Pvt. Ltd (Supra), on which reliance has been placed by the applicants is concerned, the same would not be applicable to the facts of the present case inasmuch as in the present case, the name of the Directors has been furnished by the applicants themselves. Under the circumstances, there is a presumption that the applicants are the persons who were responsible for and in charge of the conduct of the business at the relevant time.
4.1) As regards the contention that the first applicant was not a Director of the Company at the relevant time, attention was invited to the affidavit- in-reply filed by the second respondent to submit that pursuant to the communication dated 14.12.2009, calling for information under section 17(2) of the Act, it was the Company which had furnished the names of the Directors of the Company, wherein the name of the first applicant was also mentioned, under the circumstances, the applicants cannot be permitted to now take a different stand and contend that the first applicant was not a Director at the relevant time. It was further submitted that if at all the court comes to the conclusion that the first applicant, not being a Director of the Company at the relevant time on the basis of Form No.32 produced before this court, at best the complaint can be quashed against the first applicant alone. However, insofar as the other applicants are concerned, prima facie offence has been made out against the said applicants and, as such, there is no warrant for exercising powers under section 482 of the Code.
4.2) In support of his submissions, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Padal Venkata Rama Reddy @ Ramu Vs. Kovvuri Satyanarayana Reddy & Ors., 2011 AIR SCW 4504, and more particularly to paragraph 25 thereof, wherein the court, after going through the complaint, materials collected and stated in the form of charge-sheet and statement of witnesses, came to the conclusion that it cannot be presumed that there is no legal and acceptable evidence in support of prosecution. The court, accordingly, held that in the light of the principles enunciated in various decisions of the Supreme Court, the High Court has exceeded its power in quashing the criminal proceedings on the erroneous assumption that the ingredients of the offence alleged by the prosecution had not been made out.
4.3) Reliance was also placed upon the decision of the Supreme Court in the case of Dinesh B. Patel & Ors.
v. State of Gujarat & Anr., 2010 SCW 5899, wherein the court had held that the language of section 34(2) of the Drugs and Cosmetics Act substantially differs from the language of section 141 of the Negotiable Instruments Act and, as such, the court was not inclined to take a technical view based on the pleadings in the complaint. The court repelled the contention raised by the learned advocate for the accused that in a complaint under section 138 of the Negotiable Instruments Act against Company and Directors specific averment about the active role of Directors in running the Company has to be made, failing which the Directors cannot be proceeded against and that the same logic should apply even in the said case. The court held that the language of section 34(2) of the Drugs & Cosmetics Act was substantially different from the language of section 141 of the Negotiable Instruments Act and secondly, the court was dealing with an offence which has direct impact on the public health. Adverting to the facts of the present case it was submitted that the offence in question also directly has an impact on public health and, as such, the court should not interfere with the complaint at this stage. Reliance was also placed upon the decision of this court in the case of Dadajee Dhackjee Ltd. & Ors. v. State of Gujarat & Ors., 2009 (3) Crimes 364 (GUJ), wherein the court has observed that insofar as exercise of powers under section 482 of the Code of Criminal Procedure is concerned, the Apex Court in a case reported in AIR 1989 SC 1 cautioned the High Court to exercise such powers in exceptional cases and also in the case reported in 2006(7) SCC 296, it was again considered and reiterated that powers have to be exercised only in three eventualities as mentioned in section 482 of the Code and sparingly. It was submitted that under the circumstances, considering the fact that the allegations made in the complaint do make out an offence, there is no warrant for exercise of powers under section 482 of the Code for quashing the complaint.
5) The facts of the present case have to be examined in the light of the aforesaid judicial pronouncements as well as the above referred statutory provisions. A perusal of the complaint shows that it is only the name of the first applicant which finds reference in the body of the complaint. Insofar as the rest of the applicants are concerned, there is no reference to them in the entire body of the complaint. In relation to the first applicant it is averred in the complaint that at the time when the complainant went to Avenue Super Marts, he had disclosed to the seller Shri Datatray Sahebrao Deshmukh that he was a Food Inspector and that he had come for taking a sample. That he had recorded the name of Datatray Sahebrao Deshmukh in full in the presence of Panchas and that in the presence of Panchas, Shri Datatray Sahebrao Deshmukh had informed them that the owner/Director of the firm was Prakash Pachisiya (the first applicant herein), who does not reside at station. Upon asking him about the license of the firm under the provisions of the Shops and Establishments Act, he had given a Xerox copy thereof. In the presence of Panchas, he had further stated that the list of the Board of Directors of the firm would be produced subsequently. Apart from the aforesaid averments, there is no reference to any of the applicants nor has any specific allegation been made against them delineating the role played by them in the commission of the offence in question.
6) The learned counsel for the respondents has placed strong reliance upon the communication dated 14th December 2009, addressed to the Company, that is, Avenue Super Marts Pvt. Ltd for the purpose of contending that the applicants had been named in the complaint on the basis of the information furnished by the Company. In this regard, it may be pertinent to refer to the aforesaid communication dated 14th December 2009 in some detail. In the said communication, the second respondent has, in connection with the sample of Jaipuri Mukhwas taken by him on 12.10.2009, requested the Company to send the name of owner or manager or parents or the Company. It is further stated that if the Company has nominated a persons under the provisions of section 17(2) of the Prevention of Food Adulteration Act, 1954, they should inform the name of nominee or send a Photostat copy of the declaration of nomination in Form VIII under the provisions of rule 12-B of the Prevention of Food Adulteration Rules, 1955 at the earliest. Pursuant to the aforesaid communication, the Company, by a communication dated 02.02.2010, furnished a list of Directors wherein the names of the applicants herein were mentioned.
7) It may be noted that in the communication dated 14.12.2009, the second respondent has requested for information as regards the persons nominated under section 17(2) of the Act and the name of the owner, manager, parents or Company. The second respondent has not specifically called for any information as regards the Directors of the Company who are in charge of and responsible to the Company for the conduct of the affairs of the Company. Accordingly, it appears that the Company has sent a list of all the Directors to the second respondent. Thereafter, the second respondent-Food Inspector has lodged the above referred complaint, wherein all the applicants have been arraigned as accused. However, as noted hereinabove, in the body of the complaint, there is not even a single averment to the effect that the applicants herein are the Directors of the Company or that they were at the relevant time, in charge of and responsible to the Company for the conduct of the business of the Company. There is also no averment to the effect that the offence in question has been committed with the consent or connivance of or is attributable to any neglect on the part of the applicants herein so as to attract the provisions of sub-section (4) of section 17 of the Act.
8) In the opinion of this court, the mere fact that the second respondent had called for information from the Company as regards who were the Directors at the relevant time or as to who was the person nominated under section 17(2) of the Act, does not mean that the second respondent is absolved of the obligation to make necessary averments in the complaint to the effect that at the relevant time the accused persons were in charge of and were responsible to the Company for the conduct of its business. While considering a petition under section 482 of the Code for quashing of a complaint, the court is required to look into allegations made in the complaint and accepting the same to be true, ascertain as to whether any offence is made out against the accused persons. Thus, once the second respondent had any information in his hand as regards who were the persons who were in charge of and were responsible for the conduct of the business of the Company at the relevant time, it was obligatory upon him to make the necessary allegations/averments in the complaint in question. In the absence of any such allegations, the requirements of sub-section (1) and (4) of section 17 of the Act are clearly not satisfied.
9) Besides, on a plain reading of the complaint, it is apparent that there is no allegation whatsoever as regards the nature of the offence committed by the applicants herein. Under the circumstances, the contention that the complaint prima facie makes out an offence under the provisions of the Act is thoroughly misconceived inasmuch as on a reading of the complaint in its entirety, there is not even a whisper as regards the nature of the offence committed by the applicants herein or their role in commission of the offence. Under the circumstances, reliance placed upon the decision of the Supreme Court in the case of Padal Venkata Rama Reddy @ Ramu (supra) does not in any manner come to the aid of the second respondent. As regards the decision of the Supreme Court in the case of Dinesh B. Patel v. State of Gujarat (supra), the same would not be applicable to the facts of the present case inasmuch as the said decision was rendered in the context of the Drugs and Cosmetics Act, whereas the present case is in the context of the Prevention of Food Adulteration Act 1954. In the said case the court has held that the language of section 34(2) of the Drugs and Cosmetics Act substantially differs from the language of section 141 of the Negotiable Instruments Act and, as such, the court was not inclined to take a technical view based on the pleadings in the complaint, whereas section 17 of the Act is in pari materia with the provisions of section 141 of the Negotiable Instruments Act. Under the circumstances, the said decision does not carry the case of the respondents any further.
10) In Pepsico India Holdings Pvt. Ltd. (supra), the Supreme Court while dealing with a case under the provisions of the Prevention of Food Adulteration Act has held that in a complaint against the 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 a Director of the Company, against which certain allegations have been made is not sufficient to make such Directors liable in the absence of any specific allegation as regards his role in the management of the Company. The said decision would be squarely applicable to the facts of the present case, wherein except for stating that Shri Datatray Sahebrao Deshmukh had informed the second respondent in the presence of panchas that the owner/Director of the firm was Prakash Pachisiya, that is, the first applicant herein, there is not even a reference to the applicants in the entire complaint, leave alone making any specific allegations against any of the applicants.
11) In the aforesaid premises, the applicants are justified in invoking the inherent jurisdiction of this court under section 482 of the Code. The application, therefore, succeeds and is, accordingly, allowed. The complaint being New Criminal Case No.2847 of 2011 (Old Criminal Case No.3 of 2010), pending in the Court of the learned Chief Judicial Magistrate First Class, Vadodara, is hereby quashed and set aside qua the applicants herein. Rule is made absolute accordingly.
(HARSHA DEVANI, J.)
Vahid