ORDER
S.C. Mital, J.
1. The petitioners have moved this petition under Section 482, Cr. P.C. against the order D/- 16-5-96 passed by learned Additional Chief Judicial magistrate, Kushalgarh in criminal regular case No. 626/91 Under Section 7 r/w 16 Prevention of Food Adulteration Act, 1954 (hereinafter in short the Act). The petitioners have prayed that the proceedings of the aforesaid case against them; may be dropped for the grounds given in the petition.
2. Before I deal with the arguments raised before me, it is necessary to give brief facts leading to this petition. Shri R.P. Tyagi, Food Inspector took sample of mustard oil from the shop of accused No, 1 Shri Sirajuddin on 7-5-89 from out of a sealed tin in accordance with the provisions in this regard under the Act. The sealed tin was bearing grade-IInd, Batch No. H/3 674430, Bharatpur city. Shri Sirajuddin produced the bill No. 601 dt. 1-4-89 that it was purchased by him from M/s. Santosh Kumar Maganlal Khabia, Kushalgarh accused No. 2 Shri Rajnikant. M/s. Santosh Kumar Maganlal Khabia further stated to have purchased the mustard oil by bill No. 010071, D/-13-3-89 from M/s. Babulal Rajesh Kumar & Company, Jaipur. M/s. Babulal Rajesh Kumar & Company stated that the mustard oil was purchased by them from the manufacturer M/s. Kailash Chandra Raghuvar Dayal, Bharatpurcity. The sample did not conform to the prescribed standard therefore,, complaint was lodged by the Food Inspector, Shri Tyagi in the Court of Chief Judicial Magistrate, Banswara against the partners of M/s. Babulal Rajesh Kumar & Company, Jaipur petitioners Nos. 1 to 8 and also against M/s. Kailash Chandra Raghuvar Dayal, Bharatpurcity and its proprietor Bhagwan Das petitioners Nos. 9 & 10 along with Sirajuddin retailer and Rajkant proprietor M/s. Santosh kumar Maganlal Khabia, Kushalgarh.
3. The Trial commenced and the case was fixed for evidence before charge that an application was moved by the petitioners on 11-12-95 to drop the proceedings because no offence was made out against them. The learned trial Court held that the application was belated and it was not competent to review the order of taking cognizance against the petitioner. It was observed that the petitioners were partners of the firm and prima facie case existed for proceeding with the trial.
4. I have heard the learned counsel for the petitioners and the learned Public prosecutor. It is argued that the bill produced by M/s. Santosh Kumar Maganlal Khabia as plea of warranty does not bear the necessary conditions mentioned in the form No. VI A in terms of Rule 12-A. The petitioners Nos. 1 to 8 that is M/s. Babulal Rajesh Kumar. Jaipur also produced the bill which shows that Chetak Brand mustard oil was purchased from the manufacturer. The bill given by M/s. Santosh Kumar Maganlal Khabia to Sirajuddin and also the bill given by M/s. Babulal Rajesh Kumar, Jaipur to M/s. Santosh Kumar Maganlal Kahbia nowhere mentions about Agmark seal. Therefore, the bill produced by Sirajuddin does not pertain to the mustard oil of which sample has been taken by the Food Inspector. The contention on behalf of the petitioners is that there is no allegation in the complaint that the petitioners were incharge of, and were responsible for the conduct of the business of their firms as required by Section 17 of the Act. In the absence of such allegations, no prosecution could be launched against the petitioners.
5. The reference was made to 1986 Criminal Law Journal 1811 (Rajasthan) P.R. Neelkantham v. State of Rajasthan. The reliance was also placed on 1996 Criminal Law Reporter (SC) 125 : (1996 Cri LJ 1741), (Murlidhar Shyamlal v. State of Assam) to substantitate the arguments regarding the plea of warranty Under Section 19(2) of the Act and Rules 12-A of Prevention of Food Adulteration Rules 1955 (in short ‘the rules’).
6. In P. R. Neelkantham and others, the complaint was presented against the vendor and the Company M/s, Brooke Bond India Ltd. The question was canvassed whether the Directors of the Company and the salesman of the Company were rightly prosecuted Under Section 16(1) of the Act and whether cognizance was lawfully taken by the learned trial Court. There were no allegations in the complaint that who was incharge of and responsible for the business of the company or anybody was nominated to be incharge of and responsible for the conduct of the business of the company. It was only during the course of trial that Assistant Public Prosecutor requested for time to furnish the correct name and address of the manufacturer; an application was presented for summoning the Directors and salesman of the manufacturer company and the trial Court ordered to summon them. Thereafter, it was contended before this Court that in the absence of the allegations and disclosure of the names of the Director or the salesman in the charge of, and responsible for the conduct of the business of the company, cognizance could not be taken against the Director and the salesman even under Section 17, sub-section (4) of the Act which makes deeming provision. No prosecution also can be launched against the Directors and the saleman in the absence of such allegations in the complaint. It has been categorically held that the Magistrate must satisfy that there is material prima facie from the complaint that the Director and salesman were incharge of and were responsible for the business of the company. Since there were no allegations against the persons prosecuted by the Food Inspector, the prosecution and the cognizance were quashed. In the above case the decision of the Supreme Court in Municipal Corporation of Delhi v. Ram Kishan Rohatagi, 1983 Criminal Law Journal 159 : (AIR 1983 SC 67) was followed by this Court. In Murlidhar Shyamlal v. State of Assam (supra) the sample was taken from a sealed pack tin of mustard oil. The printed label on the tin mentioned ‘New Rice and Oil Mill, Raha, Pure Mustard Oil (Biswanath Brand) nett. weight 16 kg’. It was contended that the appellant had the warranty but it was held that vendor had to prove that he purchased the article of food covered by written warranty in the prescribed Form VI-A. The case memo also did not contain a warranty as prescribed in Form VI-A. It was held that it must be specifically mentioned by the dealer or distributor or manufacturer that the article sold was of the nature and quality which it purported to be. In the absence of the warranty as envisaged under Form VI-A, the accused appellant was not absolved of his liability.
7. I have perused the complaint and the bills produced by Sirajuddin, M/s. Santosh Kumar Maganlal Khabia and M/s. Babulal Rajesh Kumar and Company, Jaipur. The title of the complaint shows the petitioners Nos. 1 to 8 as partners of M/s. Babulal Rajesh Kumar and Company, Jaipur and Shri Bhagwan Das as proprietor of M/s. Kailash Chandra Raghuvar Dayal, Bharatpur city. There are no allegations in the complaint that who is the person nominated or is in the charge of and responsible for the conduct of the business of above companies. For the purposes of Section 17 which provides for offence by companies, company means anybody corporate and includes a firm or other association of individuals. Hence, both the above firms are covered under the meaning of company as defined above in Section 17 of the Act. Section 17 of the Act envisages that the person who has been nominated under sub-section (2) and where no person has been so nominated every person incharge of and responsible to the conduct of the business of the company at the time of the offence shall be deemed to be guilty of the offence and shall be proceeded against and punished accordingly. There is no mention or any allegation against the petitioners that they were nominated or were incharge of or responsible to the conduct of the business of their companies at the time of the alleged commission of the offence. The learned Public Prosecutor argued that the petitioners Nos. 1 to 8 are the partners of M/s. Babulal Rajesh Kumar and Company and Bhagwan Das is proprietor of his company. In the above capacities they must be held in charge of or responsible for the conduct of the business of their companies. I am of the view, that this contention is not tenable because as per the requirement of Section 17 of the Act it must be clearly shown and alleged that the person or persons sought to be prosecuted were nominated or incharge of and responsible to the conduct of the business of the company. Merely an averment in the title of the complaint that they are partners or proprietors, a presumption in my opinion cannot be raised that they are automatically incharge of and responsible for the conduct of the business of the company. Therefore, in the absence of specific allegations in the complaint, the cognizance could not be taken against the petitioner No. One to Nine. The citation P.R. Neelkantham and Ors. v. State of Rajasthan and Ors. (supra) fully supports the contention of the learned counsel for the petitioners.
8. The Public Prosecutor further argued that the vendor and M/s. Santosh Kumar and M/s. Babulal produced the bill for purchase of mustard oil in sealed tin. The petitioner No. 10 is the manufacturer and it is prima facie established that the sealed tin was sold by petitioner No. 10 which was Agmark and this bill must be considered as a warranty for the article to be of the nature and quality which it purport to be at the time of the sale. The learned Public Prosecutor relied upon 1976 Criminal Law Journal 1665 (Madhya Pradesh). The Commissioner Municipal Corporation, Jabalpur v. Satyanarayan and Company partnership firm and Ors.. There was no warranty in the prescribed form but the samples were bought from out of scaled tins which were bearing the manufacturer’s label guaranteeing purity. Therefore, the requirement of the proviso to Rule 12A was clearly fulfilled and the accused did not commit any offence by reason of Section 19(2) of the Act. The sample was taken on 25-3-64. But this case is distinguishable on facts from the present case because there is no averment in the complaint that there was any label on the tin guaranteeing the purity. Moreover, the Rules 12A as it stands now do not contain any proviso and requires that the warranty must be given in the prescribed form VI-A separately or in the bill, cash memo or label. There is nothing to show that the label on the tin or cash memo contained any warranty in the prescribed form. Therefore, the non-petitioner does not find support from the above cited case.
9. I am therefore, unable to subscribe to the contention in respect of warranty raised by learned Public Prosecutor. Section 19(2) of the Act lays down that a vendor shall not be deemed to have committed the offence if he proves that he purchased the articles of food from the manufacturer, distributor or dealer with a written warranty in the prescribed form. The warranty must be in the prescribed Form VI-A under 12-A of the rules. It should be certified in the prescribed form of warranty that food/foods mentioned in the invoice is/are warranted to be of the nature and quality which it/these purports/purport to be. Therefore, the vendor is absolved of the liability only when the written warranty is in the prescribed Form VI-A in terms of Rules 12- A. There cannot be despute in this case that there is no written warranty in the prescribed Form VI-A as envisaged in Rule 12-A. In the absence of such written and prescribed form of warranty, the petitioners Nos. 1 to 10 are not liable to be prosecuted and the vendor is not absolved of the liability for being prosecuted by the Food Inspector for the sale of the article which do not conform to the prescribed standard.
10. In the light of the aforesaid discussion, I am of the view, that cognizance could not be taken against the petitioners and accordingly the petition deserves to be allowed Under Section 482, Cr.P.C. This petition is hereby allowed and the proceedings against the petitioners in criminal case No. 626/91 pending in the Court of Additional Chief Judicial, Magistrate, Kushalgarh are quashed and set aside.