{"id":126824,"date":"2002-01-17T00:00:00","date_gmt":"2002-01-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/keki-bomi-dadiseth-and-ors-vs-the-state-of-maharashtra-on-17-january-2002"},"modified":"2017-07-06T20:41:17","modified_gmt":"2017-07-06T15:11:17","slug":"keki-bomi-dadiseth-and-ors-vs-the-state-of-maharashtra-on-17-january-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/keki-bomi-dadiseth-and-ors-vs-the-state-of-maharashtra-on-17-january-2002","title":{"rendered":"Keki Bomi Dadiseth And Ors. vs The State Of Maharashtra on 17 January, 2002"},"content":{"rendered":"
Bombay High Court<\/div>\n
Keki Bomi Dadiseth And Ors. vs The State Of Maharashtra on 17 January, 2002<\/div>\n
Equivalent citations: 2002 BomCR Cri, 2002 (3) MhLj 246<\/div>\n
Bench: D Sinha<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
1. Heard Shri Manohar, learned Senior Counsel for the
\npetitioners, and Mrs.  Jog, Shri  Jichkar,  Shri  Loney,
\nShri  Dhote  and  Shri  Patel, learned Additional Public
\nProsecutors for the respondent State.\n<\/p>\n
2. In all these matters, the accused\/Directors are of
\nM\/s.    Brooke  Bond  Lipton  India  Limited,  which  is
\namalgamated with Hindustan  Lever  Limited  with  effect
\nfrom 21.3.1997.    The sample of product manufactured by
\nthe Company found to be adulterated is  also  the  same,
\nnamely, “Kissan   Mixed   Fruit   Jam”.     The  Company
\nprosecuted is also the same, i.e.   M\/s.    Brooke  Bond
\nLipton  India Limited except in Criminal Application No.
\n669\/2000 where Company, which is prosecuted is Hindustan
\nLever Limited  and  product  is  “Anik   Ghee”.      The
\nallegations  against  the  accused\/Directors made in the
\ncomplaints are identical in nature and process is issued
\nby the Magistrates in all these cases for  contravention
\nof  provisions  of  Prevention of Food Adulteration Act,
\n1954 and Rules framed thereunder.  Therefore, all  these
\nmatters are heard together and disposed of by the common
\njudgment.\n<\/p>\n
3. These proceedings are directed against the  orders
\npassed  by  the  Magistrates  whereby whereby process is
\nissued in the complaints filed by the  respondent  State
\nalleging  violation  of provisions of Prevention of Food
\nAdulteration Act, 1954 (hereinafter referred to as  “the
\nAct”) against the petitioners.\n<\/p>\n
4. Shri  Manohar,  learned  Senior  Counsel  for  the
\npetitioners,  submits  that  the petitioners in Criminal
\nWrit Petition No.    245\/1998,  as  on  1.10.1996,  were
\nDirectors   of  Board  of  Brooke  Bond  Lipton  (India)
\nLimited, which was a Public Limited  Company  registered
\nunder  the  provisions of Companies Act, 1956 having its
\nregistered Office at Calcutta.    Under  the  scheme  of
\namalgamation  sanctioned  by  the High Court of Calcutta
\nand Bombay, the said Company Brooke Bond Lipton  (India)
\nLimited  was  allowed  to  be amalgamated with Hindustan
\nLever Limited with effect from 21.3.1997 and Brooke Bond
\nIndia Limited ceased to be a legal entity from the  said
\ndate.\n<\/p>\n
5. It  is  contended  by  learned Senior Counsel Shri
\nManohar  that  in  the  year  1997,  Brooke  Bond  India
\nLimited,   was   inter   alia  engaged  in  business  of
\nmanufacture and distribution of products, such as foods,
\nbeverages, oil and dairy fats including  products  under
\nKissan range  such  as  mixed  fruit jam.  Being a large
\norganization and for efficient and effective  operation,
\nbusiness   is   structured   into   various   Divisions\/
\nDepartments, each headed by the senior Official, who  is
\nresponsible  for  conduct  of  business for the job\/area
\nassigned to him.  For sale and distribution business  of
\nthe Company in the State of Maharashtra, the Company has
\nnominated  Shri  Suresh Narayanan, Branch Manager as the
\nperson responsible.\n<\/p>\n
6. On 29.1.1997, Shri T.M.   Darkar,  Food  Inspector
\nvisited the  establishment  of M\/s.  Jain Bhandu, Chitra
\nChowk, Amravati and from the  said  establishment,  drew
\nsamples  of  product  “Kissan  Mixed  Fruit Jam” for the
\npurpose of analysis under the  provisions  of  the  Act.
\nThe  labels  of  the  said  products declared them to be
\npackaged in the month of December 1996 with  net  weight
\n500 grams,  batch No.  60412-A-2 and manufactured by the
\nCompany Brooke Bond Lipton India Limited.\n<\/p>\n
7. It is contended by the learned Senior Counsel  for
\nthe  petitioners  that  the  Food  Inspector  thereafter
\nforwarded those samples to  Public  Analyst,  Akola  for
\nnecessary analysis  of  the  product  in  question.  The
\nreport of Public Analyst dated  10.3.1997  declared  the
\nproduct  as  being in violation of provisions of the Act
\nhaving contained sulphur dioxide in excess of prescribed
\nlimit.  On  the  basis  of  the  report  of  the  Public
\nAnalyst,  Food  Inspector has conducted investigation in
\norder to ascertain details in  regard  to  manufacturer,
\ndistributor  and  retailer  for  taking  further  action
\nagainst  them  by  launching   prosecution   under   the
\nprovisions of  the  Act.    The  Food Inspector obtained
\ninformation from the Retailer in respect  of  source  of
\npurchase  of  the  product  in question and it was found
\nthat product was purchased from  the  Premier  Agencies,
\nAmravati   and  it  was  further  noticed  that  Premier
\nAgencies,  Amravati  purchased  the  product  from  M\/s.
\nUniversal  Clearing  Agency, Nagpur, which was Agent for
\nthe Company Brooke Bond Lipton India Limited.  The  name
\nof  the Company Brooke Bond Lipton India Limited is also
\ndeclared on the lable of Kissan Jam as  manufacturer  of
\nthe said  product.    It  is  contended  by  the learned
\nCounsel for the petitioners that the Food Inspector  was
\ngiven  the  requisite  information sought by him and was
\ninformed that the Company in terms of the provisions  of
\nthe  Act  had  appointed  a  nominee  for conduct of its
\nbusiness in the State of Maharashtra.  The name  of  the
\nnominee was also  informed, i.e.  Suresh Narayanan.  The
\nFood Inspector  has  acknowledged  receipt  of  copy  of
\nnomination  for  Shri  Suresh  Narayanan vide his letter
\ndated 8.1.1998.  The said nomination form was  valid  in
\nterms  of  Section 17(3) of the Act at the relevant time
\nand establishment was in existence on 29.1.1997 when the
\nsamples of the product in question  were  taken  by  the
\nFood Inspector as referred to hereinabove.\n<\/p>\n
8. The learned  Senior  Counsel  for  the  petitioner
\nfurther  submits  that  in  terms  of  Section  20,  the
\nrespondent no.1 sought and  obtained  consent  from  the
\nJoint  Commissioner,  Food  and Products Administration,
\nAmravati Shri S.S.  Urunkar on 8.5.1998.   Shri  Urankar
\nat  the  relevant time was the appropriate Authority for
\ngrant of sanction for both the regions, i.e.  Akola  and
\nAmravati  and, therefore, he on 6.5.1998 granted consent
\nfor prosecution in  regard  to  a  similar  offence  for
\nadulteration  of  “Kissan  Mixed Fruit Jam” sampled from
\nAkot and Akola.   The  prosecution  has  been  initiated
\nbefore  the Court of Chief Judicial Magistrate, Amravati
\nbeing Case No.  76\/98.  The prosecution has chosen  only
\nto make members of the Board of Directors as accused and
\ndid  not  launch  any prosecution against nominee of the
\nCompany.\n<\/p>\n
9. It is further contended by learned Senior  Counsel
\nShri  Manohar  that the complaints being in violation of
\nprovisions of Section 17(1) of the Act,  the  orders  of
\nissuance of process against the present Directors cannot
\nbe sustained.    It  is  vehemently  contended that even
\nassuming that there is no valid nomination  (though  not
\naccepting  the  same),  in  the  absence of any specific
\naverment in  the  complaints  that  the  Directors  were
\nin-charge of conduct of business of the Company and were
\nalso  responsible  for  day to day administration of the
\nCompany or that offence was committed with  the  consent
\nor  connivance of the Directors or due to any negligence
\non their part,  no  offence  is  made  out  against  the
\nDirectors of the Company.\n<\/p>\n
10. It is further  contended  by  the  learned  Senior
\nCounsel  for  the  petitioners that the Magistrates have
\nfailed to appreciate that the complaints  are  abuse  of
\nprocess  of  Court  as  much  as  no  offence  has  been
\ndisclosed against the above referred  Directors  of  the
\nCompany   and  they  are  made  accused  merely  on  the
\nallegations that they were on the Board of Directors  of
\nthe Company.    It is further contended that recitals in
\nthe complaints and allegations contained therein as well
\nas consent granted by the  competent  Authority  on  the
\nbasis of which complaints are filed, do not disclose any
\nallegation  or  nothing  is on the record to connect the
\nDirectors of the Company with  the  offence  alleged  to
\nhave  been  committed  under  the provisions of the Act.
\nThere are no allegations in the complaints in respect of
\nconduct, consent  or  negligence  made  or  attributable
\nagainst  any  of the Directors (accused) and, therefore,
\ncomplaints are misconceived and orders  of  issuance  of
\nprocess passed by the Magistrates are bad in law.\n<\/p>\n
11. It is also contended  by  learned  Senior  Counsel
\nShri  Manohar  that the Magistrates failed to appreciate
\nthat the Directors  of  the  Company  are  made  accused
\nsolely  because  at  the  relevant time they were on the
\nBoard of Directors of the Company.  The  complaints  are
\ntotally  silent  whether offence has been committed with
\nthe consent or connivance of these Directors or  due  to
\nany   negligence   on   the  part  of  these  Directors.
\nSimilarly, there is not even a whisper in the complaints
\nthat any one of these Directors  or  all  of  them  were
\nresponsible for  conduct of business of the Company.  It
\nis further  contended  that  in  the  absence  of  these
\naverments  in  the  complaints  and  without  adding  or
\nsubtracting anything in the complaints, if same are read
\nas  they  are,  no  offence  is  made  out  against  the
\nDirectors under the provisions of the Act.\n<\/p>\n
12. Learned  Senior  Counsel  Shri   Manohar   further
\nsubmits  that  in order to attract provisions of Section
\n17(1)(ii) or 17(4), the complaints must  clearly  allege
\nand disclose that such persons or Directors, as the case
\nmay  be, at the relevant time, were in-charge of conduct
\nof business of the  Company  or  that  the  offence  was
\ncommitted  with  their  consent,  connivance or same was
\nattributable to  any  neglect  on  their  part.      The
\ncomplaints  are totally silent in this regard and in the
\nabsence of such averments in the complaints, no  offence
\nis made  out against the Directors of the Company.  Even
\nthe documents filed with the complaints do not  disclose
\nany  case  against  the  Directors  for  the  offence in
\nquestion.   On  the  contrary,  it  is   revealed   that
\npetitioners  are  joined  as  accused  only because they
\nhappened to be Directors of the Company at the  relevant
\ntime.   The  Magistrates,  therefore,  erred  in  law in
\nissuing process against the petitioners as well as other
\nDirectors of the Company.\n<\/p>\n
13. It is further contended by learned Senior  Counsel
\nShri  Manohar  that  recitals  in  the complaints do not
\ndisclose any offence.  In such situation, this Court may
\nexercise power under Section 482  of  Code  of  Criminal
\nProcedure and  dismiss  the complaints.  It is contended
\nthat this is a fit case where this Court is expected  to
\nexercise power under Section 482 of the Code of Criminal
\nProcedure and quash and set aside the impugned orders as
\nthe  complaints  do not disclose any offence against the
\nDirectors.  The allegations in  the  complaints  against
\nthe above referred Directors are in particular paras and
\nthey  are  identical  to  para  (20) of the complaint in
\nCriminal Writ  Petition  No.    245\/198,   which   reads
\nthus :\n<\/p>\n
 “That,  the  complainant  further  charges
\naccused nos.    8  to  20  for  committing
\noffence  by   manufacturing,   for   sale,
\ndistributing  for  sale, stocking for sale
\nand  selling  adulterated  food   article,
\nnamely,   mixed   fruit   jam   Kissan  in
\ncontravention  of  provisions  of  Section
\n17(i)17(3) read with Section 2(ia)(a) punishable
\nunder  Section  16(1)(a)(ii), Section 7(i)
\nread  with  Section  2(ia)(k)   punishable
\nunder  Section  16(1)(a)(i),  Section 7(v)
\nread  with  Rule  55(6)  punishable  under
\nSection  16(1)(a)(ii) read with Section 17
\nof the  Prevention  of  Adulteration  Act,
\n1954 and rules thereunder.”\n<\/p>\n
14. It is contended that except the allegations in  para  20
\nof the aforesaid complaint, there are no other averments
\nor allegations in the entire complaint against the above
\nreferred  Directors of the Company, who are sought to be
\nconnected  with  the  offence  in  question  and   these
\nallegations  are  totally  short of connecting the above
\nreferred accused\/Directors with the  crime  in  question
\nand,  therefore, this is a fit case where this Court may
\nexercise power under Section 482  of  Code  of  Criminal
\nProcedure and quash and set aside the impugned orders of
\nissuance  of  process  passed by the Magistrates against
\nthe petitioners.  It  is  canvassed  that  there  is  no
\nalternate   remedy  available  to  the  petitioners  for
\nrecalling of process in view of law  laid  down  by  the
\nApex Court  in  the Case of Rajendra v.  Uttam<\/a> (1993 (3)
\nSCC 134) wherein the Apex Court has held that  order  of
\nissuance of process is not an interlocotury order, but a
\nfinal order and, therefore, Magistrate will not have any
\npower  to review his own order, which is final in nature
\nas the Code of Criminal Procedure does  not  confer  any
\npower of  review on the criminal Court.  It is contended
\nby the learned Senior Counsel for the  petitioners  that
\nin the circumstances, the impugned orders of issuance of
\nprocess and complaints need to be quashed and set aside.
\nThe  last contention canvassed by learned Senior Counsel
\nShri Manohar is that other  Directors  of  the  Company,
\nsuch as G.V.Krishna  Rao, S.K.  Sinha, David R.  Thyman,
\nUdipi Mahesh Rao and Damodaran Nair are  also  similarly
\nsituated  and allegations against them in the complaints
\nare also identical in nature.  Those allegations in  the
\ncomplaints do not make out any offence, which is charged
\nagainst   these  Directors  and,  therefore,  orders  of
\nissuance of process issued by the Magistrates in respect
\nof these Directors also may be quashed and set aside.\n<\/p>\n
14)In  order  to  substantiate   above   contentions,
\nreliance  is  placed  by  learned  Senior  Counsel  Shri
\nManohar on the judgments of Apex Court and  High  Courts
\nin Municipal Corporation of Delhi v.  Ram Kishan Rohtagi
\nand others<\/a>  ,  Pepsi  Foods  Ltd.  v.\n<\/p>\n
Special Judicial Magistrate and others , State  of  Haryana  v.  Brij Lal Mittal and others<\/a>
\n, R.  Banerjee and others v.    H.D.\n<\/p>\n
Dubey  and  others  , Ashok Chaturvedi
\nand others v.  Shitul H.  Chanchani  and<\/a>  another  ,  and  G.  Sagar Suri and another v.  State
\nof U.P.  and others (2000(1) SCALE 271).\n<\/p>\n
15. Mrs.  Jog, learned  Additional  Public  Prosecutor
\nfor  the respondent State, submits that in Criminal Writ
\nPetition No.  245\/1998, on 29.1.1997, the Food Inspector
\nhad   drawn  samples  of  mixed  fruit  jam,  which  was
\nmanufactured and marketed by Brooke  Bond  Lipton  India
\nLimited.    This   food   product  was  reported  to  be
\nadulterated and  on  receiving  such  report,  the  Food
\nInspector    started    investigation   for   collecting
\ninformation regarding Company in question.   During  the
\ncourse  of  investigation, it was found that there is no
\nperson  nominated  by  the  Company   as   per   Section
\n17(1)(a)(i) of  the  Act.    In  the  absence  of  that,
\npersons, who can be  prosecuted  in  regard  to  offence
\nagainst  the Company, are contemplated in the provisions
\nof Section 17(i)(a)(ii) read with Section 17(4)  of  the
\nAct.  In the instant case, since nobody was nominated by
\nthe Company, the Company was asked by various letters by
\nthe  Food  Inspector  to  provide  information regarding
\nnames  and  addresses  of   the   Directors,   who   are
\nresponsible for conduct of business of the Company.\n<\/p>\n
16. It  is  contended by the learned Additional Public
\nProsecutor that though necessary information was  sought
\nfrom   the  Company  by  issuing  letters  by  the  Food
\nInspector, no  reply  was  received  from  the  Company.
\nTherefore,   there  was  no  alternative  for  the  Food
\nInspector  but  to  write  to   the   Deputy   Director,
\nDepartment of Food, who was requested to furnish details
\nin this regard, i.e.  names of licence holders, who were
\nresponsible on a particular date for conducting business
\nof the  Company.  The Deputy Director vide communication
\ndated 6.2.1998  gave  relevant  information.    He   has
\nforwarded the  list  of Directors of the Company.  It is
\ncontended that  the  Deputy  Director  did  not  provide
\nmaterial  information  as  to  who  were  in-charge  and
\nresponsible for conduct of business of  the  Company  at
\nthe relevant time and even the name of Managing Director
\nwas not  informed  by  the  concerned  Authority.  It is
\nsubmitted that on the basis of whatever information  the
\nprosecution  had,  the  complaints  were  filed  and the
\npetitioners, who were at the relevant time Directors  of
\nthe   Company,   were   made   accused  in  the  present
\nprosecution since the offences  were  committed  by  the
\nCompany  in view of provisions of Section 17 of the Act.
\nIt is further canvassed by the learned Additional Public
\nProsecutor that since there was  no  proper  nomination,
\nthe   Food   Inspector  noticed  during  the  course  of
\ninvestigation that  the  petitioners  were  the  persons
\nresponsible and in-charge of the Company and, therefore,
\nthey were made accused in the complaints.  The documents
\naccompanying  the  complaints  clearly  substantiate the
\nallegations in the complaints including  sanction  given
\nby the Competent Authority.\n<\/p>\n
17. It  is further submitted by the learned Additional
\nPublic Prosecutor  that  the  petitioners  have  invoked
\ninherent  powers of this Court under Section 482 of Code
\nof Criminal Procedure.  However, this power is  required
\nto  be  exercised  by  this  Court  in  the  exceptional
\ncircumstances.  Whether any offence at  this  stage  has
\nbeen  made  out  or  whether  accused  are  liable to be
\nconvicted or defence available to the accused cannot  be
\nconsidered at  this  interlocutory  stage.    There is a
\npower with the Magistrate to drop the proceedings if  he
\nis  satisfied on considering the complaint that there is
\nno offence for which accused could  be  tried.    It  is
\ncontended  that under Section 7(i) of the Act, no person
\nshall  himself  or  by  any  person   on   his   behalf,
\nmanufacture   for   sale  or  store  or  distribute  any
\nadulterated food.  In the instant case, the  Company  in
\nquestion  is  a manufacturer and the petitioners\/accused
\nare responsible for conduct  of  the  business  and  are
\nin-charge  of  the  Company  as per report of the Deputy
\nDirector, Food  Department  and,  therefore,  orders  of
\nissuance  of  process  are  sustainable in law and power
\nunder Section 482 of the Code of Criminal Procedure  may
\nnot be  exercised  at  this stage.  It is contended that
\njudgment of the Apex Court in P.  Raj Rathinam v.  State
\nof Maharashtra (2000 (10) SCC 2529) is relevant for this
\npurpose wherein the Supreme Court in a similar situation
\nthough arising out  of  offence  under  Section  141  of
\nNegotiable Instruments Act, observed that such situation
\nshould  be left to the trial Court concerned to consider
\nat the time of framing of charge instead of quashing the
\ncomplaint and issuance of process under Section  482  of
\nthe Code of Criminal Procedure.\n<\/p>\n
18. It  is  alternatively  contended  by  the  learned
\nAdditional Public Proxsecutor that if this  Court  comes
\nto  the  conclusion  that  the  proceedings  have  to be
\ndropped, in that event, respondent prays that  issue  of
\nnomination, whether it is valid or not, may be kept open
\nand subsequently if trial Court at the time of recording
\nof  pre-charge  evidence  comes  to  the conclusion that
\naccused are guilty, liberty to take  cognizance  against
\npetitioners may be granted.\n<\/p>\n
19. The   last   limb   of  argument  of  the  learned
\nAdditional Public Prosecutor is that  the  case  of  the
\nDirectors  of  the  Company,  who  are  not  arrayed  as
\naccused, may not be considered since they are not before
\nthis Court.  The issue can be gone into only  when  they
\npersonally  initiate the proceedings for quashing of the
\ncomplaints and orders of issuance of process.    In  the
\npresent  case,  the case of those Directors, who are not
\nparties  in   the   present   proceedings,   cannot   be
\nconsidered.\n<\/p>\n
20. I  have  given  anxious  thought  to  the  various
\ncontentions canvassed by the learned respective  Counsel
\nfor  the  parties and perused the relevant provisions of
\nthe Act as well as judgments of the  Supreme  Court  and
\nHigh Court  referred  to hereinabove.  Before I consider
\nthe  issue  on  merits,  there  are  certain  undisputed
\naspects of the matter, which need to be mentioned at the
\noutset.\n<\/p>\n
21. In Criminal  Writ  Petition No.  245\/98, it is not
\nin dispute that at the relevant time, petitioner nos.  1
\nto 8 and 11 were Directors of  the  Company,  which  was
\nthen  known  as Brooke Bond Lipton India Limited and the
\nsaid  Company   with   effect   from   21.3.1997   stood
\namalgamated  with  Hindustan Lever Limited and ceased to
\nbe a legal entity.   On  29.1.1997  the  Food  Inspector
\nvisited  the  establishment of Ramesh Shankar Jain, i.e.
\nM\/s.  Jain Bandhu, Chitra Chauk, Amravati.  The  product
\nfrom  which  sample  was  drawn  was “Kissan Mixed Fruit
\nJam”.  The said product having batch No.  60412-A-2, net
\nweight 500 grams and date of packaging as December  1996
\nwas purchased.    The sample was forwarded to the Public
\nAnalyst on 30.1.1997.  The report of Public Analyst  was
\nreceived on  10.3.1997.   The Public Analyst opined that
\nsample of “Kissan  Mixed  Fruit  Jam”  contains  sulphur
\ndioxide  164  ppm,  which  contravenes Rule 55(6) of the
\nPrevention of Food Adulteration Rules, 1955.   The  Food
\nInspector  sought  consent  for  prosecution,  which was
\ngranted on 8.5.1998 by  the  competent  Authority,  i.e.
\nJoint  Commissioner  of  Foods and Drugs Administration,
\nAmravati.  The complaint was filed on 18.8.1998  and  on
\nthe  basis  of  the  said  complaint, the Chief Judicial
\nMagistrate,  Amravati  passed  the  impugned  order   of
\nissuance of process on 18.8.1998 against petitioners for
\ncontravention  of  provisions  of Section 7(i) read with
\nSection 2(ia)(a) punishable under Section  16(1)(a)(ii),
\nSection 7(i) read with Section 2(ia)(k) punishable under
\nSection  16(1)(a)(i)  and  Section  7(v)  read with Rule
\n55(6) punishable under Section  16(1)(a)(ii)  read  with
\nSection  17 of the Act and validity of same is called in
\nquestion in these proceedings.\n<\/p>\n
22. As far  as Criminal Writ Petition No.  246\/1998 is
\nconcerned, undisputed facts are as follows :
\nThe   Food  Inspector  on  3.1.1997  visited  M\/s.
\nPrerna Traders situated at Akot, District  Akola.    The
\nsample  was  taken  from the product “Kissan Mixed Fruit
\nJam”, which was purchased from M\/s.  Brooke Bond  Lipton
\nIndia Limited through the clearing Agent M\/s.  Universal
\nClearing  Agencies,  Mishra  Godown,  Katol Road, Fetri,
\nNagpur.  The batch number of product is  611009-A-3  and
\nsame was  packaged in September 1996.  The net weight of
\nthe product was 200 grams.  The same  was  forwarded  to
\nthe Public  Analyst  on  4.1.1997.    The  report  dated
\n12.2.1997 of the Public Analyst shows  that  the  sample
\ncontains  sulphur  di-oxide  more  than  the permissible
\nlimit, which is in  contravention  of  Rule  55  of  the
\nPrevention of   Food  Adulteration  Rules,  1955.    The
\ninvestigation was carried out by the Food Inspector  and
\nnecessary  information  was obtained from the Company in
\nquestion.  The consent for prosecution  was  granted  by
\nthe competent  Authority,  i.e.    Joint Commissioner of
\nFoods and Drugs Administration,  Amravati  on  6.5.1998.
\nThe complaint  was  filed  on  18.8.1998.    On the said
\ncomplaint, Judicial Magistrate, First Class, Akot passed
\nthe impugned order of issuance of process  on  18.8.1998
\nfor  contravention  of  provisions  of Section 7(i) read
\nwith Sections 2(ia)(a)  and  2(ia)(k)  punishable  under
\nSection  16(1)(a)(i)  and  Section  7(v) read with Rule
\n55(6) punishable under Section 16(1)(a)(i)  of  the  Act
\nand  validity  of  same  is  called in question in these
\nproceedings.  The allegations made against the Directors
\n(accused) of the Company are identical in nature  as  in
\npara (20) of Criminal Writ Petition No.  245\/1998.\n<\/p>\n
 23. As far  as  Criminal Writ Petition No.  49\/1999 is
\nconcerned, undisputed facts are as follows :
\nThe  Food  Inspector  on  30.1.1997  visited  M\/s.
\nJayantilal Dwarkadas situated at Akola.  The sample  was
\ntaken  from  the product “Kissan Mixed Fruit Jam”, which
\nwas purchased  from  M\/s.    Brooke  Bond  Lipton  India
\nLimited through  the  clearing  Agent  M\/s.    Universal
\nClearing Agencies, Mishra  Godown,  Katol  Road,  Fetri,
\nNagpur.   The  batch  number of product is 60412-A-2 and
\nsame was packaged in December 1996.  The net  weight  of
\nthe product  was  500  grams.  The same was forwarded to
\nthe Public Analyst  on  31.1.1997.    The  report  dated
\n10.3.1997  of  the  Public Analyst shows that the sample
\ncontains sulphur  di-oxide  more  than  the  permissible
\nlimit,  which  is  in  contravention  of  Rule 55 of the
\nPrevention of  Food  Adulteration  Rules,  1955.     The
\ninvestigation  was  carried  out  by the Food Inspector.
\nNecessary information was obtained from the  Company  in
\nquestion.   The  consent  for prosecution was granted by
\nthe competent Authority, i.e.    Joint  Commissioner  of
\nFoods  and Drugs Administration, Amravati on 21.12.1998.
\nThe complaint was  filed  on  6.1.1999.    On  the  said
\ncomplaint,  Chief  Judicial Magistrate, Akola passed the
\nimpugned order of issuance of process  on  6.1.1999  for
\ncontravention  of  provisions  of Section  7(i) read with
\nSection 2(ia)(a) punishable under Section  16(1)(a)(i),
\nSection  7(i) read with Section 2(ia)(k) punishable under
\nSection  16(1)(a)(i)  and  Section  7(v)  read with Rule
\n55(6) punishable under Section  16(1)(a)(ii)  read  with
\nSection  17 of the Act and validity of same is called in
\nquestion in these proceedings.    The  allegations  made
\nagainst  the  Directors  (accused)  of  the  Company are
\nidentical in nature as in para  (20)  of  Criminal  Writ
\nPetition No.  245\/1998.\n<\/p>\n
24. As far  as  Criminal Writ Petition No.  50\/1999 is
\nconcerned, undisputed facts are as follows :
\nThe Food  Inspector  on  16.10.1996  visited  M\/s.
\nM\/s.  New  Soni Provision situated at Akola.  The sample
\nwas taken from the product  “Kissan  Mixed  Fruit  Jam”,
\nwhich was  purchased from M\/s.  Brooke Bond Lipton India
\nLimited through  the  clearing  Agent  M\/s.    Universal
\nClearing  Agencies,  Mishra  Godown,  Katol Road, Fetri,
\nNagpur.  The batch number of product  is  62407-A-2  and
\nsame was  packaged  in July 1996.  The net weight of the
\nproduct was 500 grams.  The same was  forwarded  to  the
\nPublic Analyst   on   17.10.1996.     The  report  dated
\n18.11.1997 of the Public Analyst shows that  the  sample
\ndoes  not  conform  to  the  standards  of  Jam  as  per
\nPrevention  of  Food  Adulteration   Rules,   1955   and
\ncontravenes Rule   54   of   the   said   Rules.     The
\ninvestigation was carried out by the Food Inspector  and
\nnecessary  information  was obtained from the Company in
\nquestion.  The consent for prosecution  was  granted  by
\nthe competent  Authority,  i.e.    Joint Commissioner of
\nFoods and Drugs Administration, Amravati on  14.10.1998.
\nThe complaint  was  filed  on  15.1.1999.    On the said
\ncomplaint, Chief Judicial Magistrate, Akola  passed  the
\nimpugned  order  of issuance of process on 15.1.1999 for
\ncontravention of provisions of Section   7(i)  read  with
\nSection  2(ia)(a)(m)  and (k) and Section 7(v) read with
\nRule 54 punishable under Section 16 and 17  of  the  Act
\nand  validity  of  same  is  called in question in these
\nproceedings.  The allegations made against the Directors
\n(accused) of the Company are identical in nature  as  in
\npara (20) of Criminal Writ Petition No.  245\/1998.\n<\/p>\n
25. As far as Criminal Writ Petition No.   51\/1999  is
\nconcerned, undisputed facts are as follows :
\nThe Food  Inspector  on  13.12.1996  visited  M\/s.
\nKailash Traders,  Akot  Stand,  Akola.    The sample was
\ntaken from the product “Kissan Mixed Fruit  Jam”,  which
\nwas purchased  from  M\/s.    Brooke  Bond  Lipton  India
\nLimited through  the  clearing  Agent  M\/s.    Universal
\nClearing  Agencies,  Mishra  Godown,  Katol Road, Fetri,
\nNagpur.  The batch number of product  is  60711-A-1  and
\nsame was  packaged  in November 1996.  The net weight of
\nthe product was 500 grams.  The same  was  forwarded  to
\nthe Public  Analyst  on  20.2.1997.    The  report dated
\n26.3.1997 of the Public Analyst shows  that  the  sample
\ncontains  sulphur  di-oxide  more  than  40.00 parts per
\nmillion, which is in contravention of  Rule  55  of  the
\nPrevention of   Food  Adulteration  Rules,  1955.    The
\ninvestigation was carried out by the Food Inspector  and
\nnecessary  information  was obtained from the Company in
\nquestion.  The consent for prosecution  was  granted  by
\nthe competent  Authority,  i.e.    Joint Commissioner of
\nFoods and Drugs Administration, Amravati on  14.10.1998.
\nThe complaint  was  filed  on  4.1.1999.    On  the said
\ncomplaint, Chief Judicial Magistrate, Akola  passed  the
\nimpugned  order  of  issuance of process on 4.1.1999 for
\ncontravention of provisions of Section   7(i)  read  with
\nSection  2(ia)(a)  and  Section   7(i)  read with Section
\n2(ia)(k)  and  Section  7(v)  read   with   Rule   55(6)
\npunishable  under  Sections  16  and  17  of the Act and
\nvalidity  of  same  is  called  in  question  in   these
\nproceedings.  The allegations made against the Directors
\n(accused)  of  the Company are identical in nature as in
\npara (20) of Criminal Writ Petition No.  245\/1998.\n<\/p>\n
26. As far  as  Criminal  Application No.  669\/2000 is
\nconcerned, undisputed facts are as follows :
\nThe  Food  Inspector  on  25.3.1998  visited  M\/s.
\nDurga Provision Stores, Akola.   The  sample  was  taken
\nfrom  the  product “Anik Ghee”, which was purchased from
\nM\/s.  Hindustan Lever Limited through the clearing Agent
\nM\/s.  Universal Clearing Agencies, Mishra Godown,  Katol
\nRoad, Fetri,  Nagpur.  The batch number of product is 15
\nA\/14 and same was packaged in January  1998.    The  net
\nweight of  the  product  was  200  grams.   The same was
\nforwarded to the  Public  Analyst  on  26.3.1998.    The
\nreport  dated  4.5.1998 of the Public Analyst shows that
\nthe sample contains  Butyre-refractometer  reading  more
\nthan  and Reichert value less than the standard and same
\ndoes not conform to standard of ghee as  per  Prevention
\nof Food Adulteration Rules, 1955.  The investigation was
\ncarried   out   by  the  Food  Inspector  and  necessary
\ninformation was obtained from the Company  in  question.
\nThe consent for prosecution was granted by the competent
\nAuthority, i.e.    Joint Commissioner of Foods and Drugs
\nAdministration, Amravati on 24.12.1999.   The  complaint
\nwas filed  on  24.3.2000.   On the said complaint, Chief
\nJudicial Magistrate, Akola passed the impugned order  of
\nissuance  of  process  on 24.3.2000 for contravention of
\nprovisions of Section  7(i) read  with  Section  2(ia)(a)
\npunishable  under  Section 16(1)(a)(ii) and Section  7(i)
\nread with Section  2(ia)(m)  punishable  under  Sections
\n16(1)(a)(i) of the Act and validity of same is called in
\nquestion in  these  proceedings.    The allegations made
\nagainst the  Directors  (accused)  of  the  Company  are
\nidentical  in  nature  as  in para (20) of Criminal Writ
\nPetition No.  245\/1998.\n<\/p>\n
 27 .As far as Criminal Application No.   1282\/1999  is
\nconcerned, undisputed facts are as follows :
\nThe  Food  Inspector  on  19.7.1996  visited  M\/s.
\nMubarak Trading  Company  situated  at  Yavatmal.    The
\nsample  was  taken  from the product “Kissan Mixed Fruit
\nJam”, which was purchased from M\/s.  Brooke Bond  Lipton
\nIndia Limited through the clearing Agent M\/s.  Universal
\nClearing  Agencies,  Mishra  Godown,  Katol Road, Fetri,
\nNagpur.  The batch number of product  is  60201-A-1  and
\nsame was  packaged  in  January 1996.  The net weight of
\nthe product was 500 grams.  The same  was  forwarded  to
\nthe Public  Analyst  on  20.7.1996.    The  report dated
\n23.8.1996 of the Public Analyst shows  that  the  sample
\ncontains  sulphur  di-oxide  more  than  the permissible
\nlimit, which is in contravention of Rule  55(6)  of  the
\nPrevention of   Food  Adulteration  Rules,  1955.    The
\ninvestigation was carried out by the Food Inspector  and
\nnecessary  information  was obtained from the Company in
\nquestion.  The consent for prosecution  was  granted  by
\nthe competent  Authority,  i.e.    Joint Commissioner of
\nFoods and Drugs Administration, Amravati  on  12.5.1999.
\nThe complaint  was  filed  on  9.6.1999.    On  the said
\ncomplaint, Chief Judicial  Magistrate,  Yavatmal  passed
\nthe  impugned  order  of issuance of process on 9.6.1999
\nfor contravention of provisions  of  Section   7(i)  read
\nwith   Section   2(ia)(a)   punishable   under   Section
\n16(1)(a)(i), Section 7(v) read with Rules 54 and  55(6)
\npunishable  under  punishable under Section 16(1)(a)(ii)
\nand Section 17 of the Act and validity of same is called
\nin question in these proceedings.  The allegations  made
\nagainst  the  Directors  (accused)  of  the  Company are
\nidentical in nature as in para  (20)  of  Criminal  Writ
\nPetition No.  245\/1998.\n<\/p>\n
28. As far  as  Criminal Application No.  1283\/1999 is
\nconcerned, undisputed facts are as follows :
\nThe  Food  Inspector  on  21.5.1996  visited  M\/s.
\nGirish Agencies, Pusad.  The sample was taken  from  the
\nproduct  “Kissan  Mixed  Fruit Jam”, which was purchased
\nfrom M\/s.  Brooke Bond Lipton India Limited through  the
\nclearing Agent  M\/s.    Pacific  Clearing and Forwarding
\nAgent, Parlok, 22\/2, near  Railway  Overbridge,  Pimpri,
\nPune.   The batch number of the product is 50612-A-1 and
\nsame was packaged in December 1995.  The net  weight  of
\nthe product  was  500  grams.  The same was forwarded to
\nthe Public Analyst  on  22.5.1996.    The  report  dated
\n20.6.1996  of  the  Public Analyst shows that the sample
\ncontains sulphur  di-oxide  more  than  the  permissible
\nlimit  and  does  not  conform  to the standards of Jam,
\nwhich is in contravention of Rule 55 of  the  Prevention
\nof Food Adulteration Rules, 1955.  The investigation was
\ncarried   out   by  the  Food  Inspector  and  necessary
\ninformation was obtained from the Company  in  question.
\nThe consent for prosecution was granted by the competent
\nAuthority, i.e.    Joint Commissioner of Foods and Drugs
\nAdministration, Amravati on 27.5.1999.    The  complaint
\nwas filed on 17.6.1999.  On the said complaint, Judicial
\nMagistrate, First Class, Pusad passed the impugned order
\nof issuance of process on 17.6.1999 for contravention of
\nprovisions  of  Section   7(i) read with Section 2(ia)(a)
\npunishable under Section 16(1)(a)(ii), Section 7(v) read
\nwith Rules 54  and  55(6)  punishable  under  punishable
\nunder Section 16(1)(a)(ii) and Section 17 of the Act and
\nvalidity   of  same  is  called  in  question  in  these
\nproceedings.  The allegations made against the Directors
\n(accused) of the Company are identical in nature  as  in
\npara (20) of Criminal Writ Petition No.  245\/1998.\n<\/p>\n
29. It  will  be appropriate at this stage to consider
\nwhether inherent powers of this Court under Section  482
\nof  the Code of Criminal Procedure can be invoked by the
\npetitioners in a situation like this  and  whether  this
\nCourt  is  entitled to exercise the same for the purpose
\nof quashing of complaint as well as order of issuance of
\nprocess.  It is no doubt true that ordinarily  the  High
\nCourt  will  not interfere with the criminal proceedings
\nwhen the facts alleged in the  complaint,  if  they  are
\naccepted  to  be correct at their face value, make out a
\nprima facie case against the accused  for  the  offences
\ncharged with.    It is also well settled that this Court
\nneeds to exercise self restraint in interfering with the
\ncriminal proceedings at the  initial  stage.    However,
\nwhen  the  complaint  if it is accepted to be correct on
\nits face value, does not make out an offence the accused
\ncharged with, then in order to prevent abuse of  process
\nof Court, this Court is entitled to exercise power under
\nSection 482  of  Code  of Criminal Procedure.  Similarly
\nwhen there are no averments in the complaint to  connect
\nthe  accused  with  the  offence  they  are charged, the
\ninherent powers  of  this  Court  can  be  exercised  to
\nprevent mis-carriage  of  justice.    Adverting  to  the
\npresent  proceedings  under  Section  482  of  Code   of
\nCriminal  Procedure,  it  needs to be seen as to whether
\nthere is any act committed by the Directors to  draw  an
\ninference  that they could also be vicariously liable or
\nnot for the commission of the offences  and  if  on  the
\nclose  scrutiny  of the allegations in the complaint, it
\nis found that allegations and averments in the complaint
\nconnect Directors with the offence, then the question of
\nexercising power under Section 482 of Code  of  Criminal
\nProcedure does  not  arise.  However, if the allegations
\nare such that they do not make out any  offence  against
\nthe  Directors  for  which  they  are  charged and still
\nprocess is issued by the Magistrate taking cognizance of
\nthe offence, then allowing prosecution to continue would
\namount to abuse of process of Court and in the situation
\nlike this, this Court would be justified  in  exercising
\npower under Section 482 of Code of Criminal Procedure.\n<\/p>\n
30. It is also necessary to keep in mind that when the
\nfirst information report is lodged under Section 154  of
\nCode  of  Criminal  Procedure  by the complainant in the
\nPolice Station, the Police machinery is set in motion on
\nthe basis of the same and it is after completion of such
\ninvestigation, charge-sheet is filed  in  the  competent
\ncriminal Court  by  the  prosecution.   In the case like
\nthis, if the High Court is moved  for  quashing  of  the
\nfirst  information report at the threshold under Section
\n482  of  Code  of  Criminal   Procedure,   even   before
\nprosecution  is  allowed  to  conduct investigation, the
\nsituation would be different than the case in  hand  and
\nCourt  should  be slow in exercising power under Section
\n482 in such circumstances.  However, the  case  in  hand
\nstands  on  a  different pedestal where investigation is
\ncarried out and conducted by the Investigating  Officer,
\ni.e.  Food Inspector prior to filing of the complaint in
\nthe Court and, therefore, recitals\/allegations\/averments
\nin  the  complaint,  if accepted as true and correct, at
\nleast prima facie must  connect  the  accused  with  the
\ncrime in  question.  If it fails to make out any offence
\nagainst accused, then inherent powers of this Court  can
\nbe exercised  for quashing of such proceedings.  Section
\n482 is enacted and inserted  in  the  Code  of  Criminal
\nProcedure for the purpose of preventing abuse of process
\nof  Court  and  if  it  is brought to the notice of this
\nCourt that forum of the criminal Court is being used for
\nabuse  of  process  of  Court,  in  such  circumstances,
\ninherent  power  under  Section  482, in my opinion, can
\nundoubtedly be exercised to prevent the same.\n<\/p>\n
31. The Apex Court in the case of Ashok Chaturvedi and
\nothers v.   Shitul  H.   Chanchani and<\/a> another  had an occasion to consider this aspect and  in
\npara (5) observed thus :\n<\/p>\n
 “But  the  question  that  yet remains for
\nconsideration is whether allegations  made
\nin the petition of complaint together with
\nstatements made by the complainant and the
\nwitnesses  before  the Magistrate taken on
\ntheir face value, do make the offence  for
\nwhich  Magistrate has taken cognizance of?
\nThe learned Counsel for the respondent  in
\nthis connection had urged that accused had
\na right to put this argument at the time
\nof framing of charges and, therefore, this
\nCourt  should not interfere with the order
\nof Magistrate taking  cognizance  at  this
\nstage.   This  argument, however, does not
\nappeal to us inasmuch as merely because an
\naccused has a right to plead at  the  time
\nof  framing  of  charges  that there is no
\nsufficient material for  such  framing  of
\ncharges  as  provided  in  Section  245 of
\nCriminal Procedure Code,  he  is  debarred
\nfrom  approaching  the  Court  even at the
\nearliest (sic earlier) point of time  when
\nthe  Magistrate  takes  cognizance  of the
\noffence and summons the accused to  appear
\nto contend that the very issuance of order
\nof  taking  cognizance  is  invalid on the
\nground that no offence can be said to have
\nbeen made out on the allegations  made  in
\nthe complaint  petition.  It has been held
\nin a number  of  cases  that  power  under
\nSection  482 has to be exercised sparingly
\nand in  the  interest  of  justice.    But
\nallowing   the   criminal  proceedings  to
\ncontinue even where the allegations in the
\ncomplaint petition do  not  make  out  any
\noffence would be tantamount to an abuse of
\nprocess  of  Court  and,  therefore, there
\ncannot be any dispute that in  such  case,
\npower  under  Section  482  of Code can be
\nexercised.”\n<\/p>\n
32.      Similar  view is expressed by the Apex Court in G.
\nSagar Suri and another v.  State of  U.P.    and  others
\n(2000(1) SCALE  271).  Para 7 of the said judgment reads
\nthus :\n<\/p>\n
 “It was  submitted  by Mr.  Lalit, learned
\nCounsel for the  second  respondent,  that
\nthe   appellants  have  already  filed  an
\napplication in  the  Court  of  Additional
\nJudicial  Magistrate  for  their discharge
\nand that this Court should  not  interfere
\nin  the criminal proceedings, which are at
\nthe threshold.  We do not  think  that  on
\nfiling  of  any application for discharge,
\nHigh    Court    cannot    exercise    its
\njurisdiction  under  Section  482  of  the
\nCode.  In this connection,  reference  may
\nbe  made to two decisions of this Court in
\nPepsi Foods Ltd.  and another v.   Special
\nJudicial  Magistrate  and others  and Ashok Chaturvedi  and  others
\nv.  Shitul S.  Chanchani and<\/a> another    wherein   it   has   been
\nspecifically   held   that   though    the
\nMagistrate  trying a case has jurisdiction
\nto discharge the accused at any  stage  of
\ntrial,  if  he  considers the charge to be
\ngroundless, but that does  not  mean  that
\nthe accused cannot approach the High Court
\nunder  Section  482 of the Code or Article
\n227  of  the  Constitution  to  have   the
\nproceedings  quashed  against them when no
\noffence has been made out against them and
\nstill why must they undergo the  agony  of
\ncriminal trial.”\n<\/p>\n
33.      In view of the ratio laid down by the  Apex  Court
\nin  the  above  referred  cases, it is well settled that
\ninherent power under Section 482 can be invoked  by  the
\naccused  in  the  appropriate case irrespective of other
\nfactors and this  Court  can  exercise  the  same  in  a
\ndeserving  case within parametres of law and, therefore,
\nthe contentions  canvassed  by  the  learned  Additional
\nPublic  Prosecutor  in  this regard are misconceived and
\nsame are rejected.\n<\/p>\n
34.       Now coming to the factual aspect of the matter  at
\nhand,   the   Company  in  question  is  prosecuted  for
\ncontravening the provisions of the  Prevention  of  Food
\nAdulteration Act  and  Rules  made thereunder.  When the
\noffence is committed by the Company,  then  the  persons
\nrequired  to  be  prosecuted for such offence along with
\nCompany are provided in Section 17 of the Act.   Section
\n17 can be classified basically into two parts –
\nWhere  the  offence under this Act has been committed by
\nthe Company –\n<\/p>\n
-the person if any, who has  been  nominated  under
\nsub-section  (2)  of  Section  17 to be in-charge of and
\nresponsible to the Company for the conduct  of  business
\nof  the  Company shall be guilty of offence and shall be
\nliable to be proceeded with and punished accordingly.\n<\/p>\n
– where  no  person  has  been  so  nominated,  every
\nperson,  who  at  the time the offence was committed was
\nin-charge of and was responsible to the Company for  the
\nconduct  of  business of the Company, shall be deemed to
\nbe guilty of offence and shall be liable to be proceeded
\nagainst and punished accordingly as  contemplated  under
\nSection 17(1)(a)(i)(ii) of the Act.\n<\/p>\n
In  addition  to  persons  referred   hereinabove,   the
\nDirectors  of  the Company can also be proceeded against
\nand punished according to law.  When  an  offence  under
\nthis  Act  has  been  committed by the Company and it is
\nproved that offence has been committed with the  consent
\nor connivance of or is attributable to or any neglect on
\nthe  part  of  any Director, Manager, Secretary or other
\nOfficers  of  the  Company,  such  Directors  and  other
\npersons referred to shall be deemed to be guilty of that
\noffence and shall also be liable to be proceeded against
\nand   punished   accordingly   as   contemplated   under
\nsub-section (4) of Section  17  of  the  Act.    In  the
\ninstant  case, sub-section (4) of Section 17 is relevant
\nfor the purpose of deciding the controversy in issue.\n<\/p>\n
35. Under  the  scheme of Section 17, when the offence
\nis  committed  by  the  Company,  the  person,  who   is
\nnominated under sub-section (2) of Section 17 would be a
\nperson  in-charge  of and responsible to the Company for
\nconduct of business of the Company and can be  proceeded
\nagainst and  punished  accordingly.    However,  in  the
\nabsence of any nomination by the Company, every  person,
\nwho  at  the time of commission of offence was in-charge
\nand responsible to the Company for conduct  of  business
\nof  the  Company  can  be proceeded against and punished
\naccordingly for the offence committed  by  the  Company.
\nThe  person  in-charge of and responsible for conduct of
\nbusiness  of  the  Company  can  be  anybody   including
\nDirectors of  the  Company.  However, it must be alleged
\nin the complaint in this regard in order to show at  the
\nthreshold  as  to  who  are  persons  in-charge  of  and
\nresponsible for conduct of business of the Company.   In
\nthe  absence  of  any allegations in the complaint, in a
\ngiven set of circumstances, it will not be  possible  to
\nconnect  the  accused  with the crime in question and if
\nthe allegations  in  this  regard  are  missing  in  the
\ncomplaint   itself,  then  proving  of  those  facts  by
\nadducing evidence   does   not   arise.       In    such
\ncircumstances,  it  boils down to a situation where even
\nif the allegations in the complaint are accepted as they
\nare, without adding or subtracting anything from it,  it
\nwould  not  either  connect  the  accused  with crime in
\nquestion nor would make out  even  a  prima  facie  case
\nagainst  the  accused and in such situation, it will not
\nbe expedient to allow such prosecution to go  on,  which
\nwould amount to abuse of process of the Court apart from
\nthe  fact  that  accused will have to undergo tremendous
\nagony and pain for such proceedings.\n<\/p>\n
36. Under  the  scheme of Section 17 of the Act, there
\nare  three  categories  of  individuals,  who   can   be
\nproceeded  against and punished, if found guilty for the
\noffence committed by the  Company.    Those  are  person
\nnominated  by  the  Company,  person  in-charge  of  and
\nresponsible to conduct of business of  the  Company  and
\nthird  is  in addition to these two, any Director of the
\nCompany, if it is proved that offence has been committed
\nwith the consent or connivance of or is attributable  to
\nany neglect  on  the part of such Directors.  Similarly,
\nthe person nominated may or may not be a Director of the
\nCompany.  He can be anybody whomsoever the Company feels
\nit appropriate to nominate.   Similar  is  the  case  in
\nrespect  of  person  in-charge  of  and  responsible  to
\nconduct of business of the Company.  However, by  virtue
\nof  sub-section  (4)  of  Section  17,  Directors of the
\nCompany  are  also  liable  to  be  prosecuted  in   the
\ncontingencies    referred    to   in   sub-section   (4)
\nnotwithstanding  anything   contained   in   sub-section
\n1(a)(i)(ii) of Section 17 of the Act.  However, in order
\nto   bring   home   guilt,   averments,  allegations  or
\nstatements to that extent in this regard must find place
\nin the complaint, which is filed by the  Food  Inspector
\nin the competent criminal Court after due investigation.
\nThe complaint must prima facie demonstrate nexus between
\nDirector  and  crime  committed within the parametres of
\nsub-section (4) of Section 17.  What is expected  is  at
\nleast  the  allegations in the complaint that offence is
\ncommitted under the  provisions  of  the  Act  with  the
\nconsent  or  connivance  of  such  Director  or  same is
\nattributable  to  any  neglect  on  the  part  of   such
\nDirector.   In the absence of such allegations, it would
\nbe not only difficult but impossible to hold even  prima
\nfacie  that  allegations  in  the complaint make out any
\ncase against such Director.\n<\/p>\n
37. It is, however, true that complaint cannot be said
\nto be encyclopedia of  the  facts  alleged  against  the
\naccused.  However, we cannot lose sight of the fact that
\nwhat  is  required  to be proved by adducing evidence by
\nprosecution is the allegations  made  in  the  complaint
\nregarding  material  particulars of the prosecution case
\nagainst the accused.  If all these material  particulars
\nare  not  finding  place  in the complaint, then nothing
\nwould remain to be proved against  such  person  and  it
\nwill  have  to  be  held  that  for  want  of  necessary
\nallegations, averments or statements in  the  complaint,
\nno  offence is made out against the accused and allowing
\nsuch prosecution to continue would undoubtedly amount to
\nabuse of process of the Court.\n<\/p>\n
38. Now  coming to the factual allegations made in the
\ncomplaint against the  petitioners\/accused  in  Criminal
\nWrit Petition  No.   245\/1998, the same are only in para
\n(20) of the complaint, which are reproduced below :
\n “That,  the  complainant  further  charges
\naccused nos.    8  to  20  for  committing
\noffence   by   manufacturing,   for  sale,
\ndistributing for sale, stocking  for  sale
\nand   selling  adulterated  food  article,
\nnamely,  mixed   fruit   jam   Kissan   in
\ncontravention  of  provisions  of  Section
\n 7(i) read with Section 2(ia)(a) punishable
\nunder Section 16(1)(a)(ii),  Section   7(i)
\nread   with  Section  2(ia)(k)  punishable
\nunder Section  16(1)(a)(i),  Section  7(v)
\nread  with  Rule  55(6)  punishable  under
\nSection 16(1)(a)(ii) read with Section  17
\nof  the  Prevention  of  Adulteration Act,
\n1954 and rules thereunder.”\n<\/p>\n
It  is not in dispute that allegations or averments made
\nby the complainant against the petitioners\/Directors for
\ncommission of offence under the provisions  of  the  Act
\nare  only  in above referred para (20) of the complaint.
\nPlain reading of  the  recitals  of  para  (20)  of  the
\ncomplaint  would  show  that  there  are  no specific or
\nremote allegations made by the complainant, which  would
\ndemonstrate  any  aspect  of  consent  or  connivance in
\nregard to commission of offence by the Directors of  the
\nCompany  under  the  provisions  of the Act nor same are
\neven remotely attributable to any neglect on their part.
\nThe entire complaint  including  para  (20)  is  totally
\nsilent  in  this  regard and there is not even a whisper
\nagainst the Directors in this respect.  In  the  absence
\nthereof, there is no nexus demonstrated in the complaint
\nbetween  these Directors and commission of offence under
\nthe provisions of the Act.  The allegations in para (20)
\nof the complaint,  even  if  accepted  in  toto,  in  my
\nopinion,  would  not  prima  facie  make out any offence
\nunder the provisions of the Act muchless under Section 7
\nof the Act.\n<\/p>\n
39. As  observed  hereinabove,  in  order  to  proceed
\nagainst   the   Directors,   particularly   in  view  of
\nsub-section  (4)  of  Section  17,  their  prima   facie
\ninvolvement and connection with the crime must appear in
\nthe  complaint in the form of allegations, statements or
\naverments and then question of proving them  would  come
\nat the stage of evidence.  However, in the instant case,
\nas observed hereinabove, in the complaints, there are no
\nsuch  allegations  or  averments  and  for  want of such
\nallegations or averments, it is  not  possible  even  to
\nhold  prima  facie  that  nexus  between  the  crime and
\nDirectors is made out even if recitals in the complaints
\nare accepted.  In a situation like  this,  it  will  not
\nonly  be  futile  to  allow  prosecution to continue and
\nproceed against the petitioners, but the same  would  be
\nabuse  of  process of Court, which requires interference
\nat the hands of this Court at this stage.\n<\/p>\n
40. It is, however, true that even the documents which
\nare accompanied with the complaint, if disclose  offence
\nagainst the accused, then the same will be enough in the
\ngiven  set of circumstances to demonstrate nexus between
\naccused and crime in question and would  even  make  out
\nprima facie  case  for the offence charged.  However, in
\nthe instant case, the only document which is relied upon
\nby the prosecution  to  demonstrate  complicity  of  the
\npetitioners  in  the  crime  in question is letter dated
\n6.2.1998 issued by the Deputy  Director,  Department  of
\nFood whereby the Deputy Director had simply informed the
\nprosecuting Authority that petitioners were Directors of
\nthe Company  at the relevant time and nothing more.  The
\nfact of being Directors of the Company at  the  relevant
\ntime is  not disputed by the petitioners.  However, this
\ndocument, in my opinion, is totally inadequate  even  to
\ndemonstrate  prima  facie  that  offence  in question is
\ncommitted  with  the  consent  or  connivance  of  these
\nDirectors  or same can be attributable to any neglect on
\ntheir part.    The  documents   accompanied   with   the
\ncomplaint,  therefore,  do  not  help the prosecution in
\nthis regard.\n<\/p>\n
41. The  controversy  in  this regard is considered by
\nthe Apex Court in the case of Municipal  Corporation  of
\nDelhi v.    Ram  Kishan  Rohtagi and others<\/a> .  In para 10 thereof, the Supreme Court has observed
\nthus :\n<\/p>\n
 “It is, therefore, manifestly  clear  that
\nproceedings  against  an  accused  in  the
\ninitial stages can be quashed only  if  on
\nthe   face  of  the  complaint  or  papers
\naccompanying  the  same,  no  offence   is
\nconstituted.   In other words, the test is
\nthat  taking  the  allegations   and   the
\ncomplaint  as  they are, without adding or
\nsubtracting anything,  if  no  offence  is
\nmade  out,  then  the  High  Court will be
\njustified in quashing the  proceedings  in
\nexercise  of  its powers under Section 482
\nof the present Code.”\n<\/p>\n
Similarly inpara 15 of the judgment,  the  Apex  Court
\nhas observed thus :\n<\/p>\n
 “So far as the Manager  is  concerned,  we
\nare satisfied that from the very nature of
\nhis duties, it can be safely inferred that
\nhe would undoubtedly be vicariously liable
\nfor the offence, vicarious liability being
\nan  incident  of an offence under the Act.
\nSo far as  the  Directors  are  concerned,
\nthere is not even a whisper nor a shred of
\nevidence  nor anything to show, apart from
\nthe presumption drawn by the  complainant,
\nthat  there  is  any  act committed by the
\nDirectors   from   which   a    reasonable
\ninference  can  be  drawn  that they could
\nalso be  vicariously  liable.    In  these
\ncircumstances,    therefore,    we    find
\nourselves in complete agreement  with  the
\nargument  of  the  High Court that no case
\nagainst the Directors (accused nos.  4  to\n<\/p>\n
7)  has  been  made  out  ex  facie on the
\nallegations made in the complaint and  the
\nproceedings   against  them  were  rightly
\nquashed.”\n<\/p>\n
Similarly,  in  para  (8) of the judgment in the case of
\nState of Haryana v.  Brij  Lal  Mittal  and  others<\/a>  , the Apex Court has observed thus :\n<\/p>\n
“Nonetheless,  we  find  that the impugned
\njudgment of the High Court has got  to  be
\nupheld for an altogether different reason.
\nAdmittedly,  the  three  respondents  were
\nbeing  prosecuted  as  directors  of   the
\nmanufacturers  with  the  aid  of  Section
\n34(1) of the Act, which reads as under :\n<\/p>\n
OFFENCES BY COMPANIES :\n<\/p>\n
(1) Where an offence under  this  Act  has
\nbeen  committed by a company, every person
\nwho at the time the offence was committed,
\nwas in charge of, and was  responsible  to
\nthe   company   for  the  conduct  of  the
\nbusiness of the company, as  well  as  the
\ncompany  shall  be  deemed to be guilty of
\nthe offence and  shall  be  liable  to  be
\nproceeded     against     and     punished
\naccordingly.\n<\/p>\n
Provided that nothing  contained  in  this
\nsub-section  shall  render any such person
\nliable to any punishment provided in  this
\nAct  if  he  proves  that  the offence was
\ncommitted without his knowledge or that he
\nexercised all due diligence to prevent the
\ncommission of such offence.\n<\/p>\n
It  is  thus  seen  that   the   vicarious
\nliability of a person for being prosecuted
\nfor  an offence committed under the Act by
\na company arises if at the  material  time
\nhe   was   in   charge  of  and  was  also
\nresponsible to the company for the conduct
\nof its business.  Simply because a  person
\nis  a director of the company, it does not
\nnecessarily mean that he fulfills both the
\nabove  requirements  so  as  to  make  him
\nliable.    Conversely,   without  being  a
\ndirector a person can be in-charge of  and
\nresponsible to the company for the conduct
\nof its  business.    From the complaint in
\nquestion, we, however, find that except  a
\nbald  statement  that the respondents were
\ndirectors of the manufacturers,  there  is
\nno  other  allegation  to  indicate,  even
\nprima facie, that they were  in-charge  of
\nthe  company  and  also responsible to the
\ncompany for the conduct of its business.”\n<\/p>\n
In  the above case, the Apex Court dismissed the special
\nleave petition preferred by the State.\n<\/p>\n
42.        From the above  referred  judgments  of  the  Apex
\nCourt, two legal aspects emerge :\n<\/p>\n
I)criminal  proceedings  initiated  against the accused
\ncan be quashed at the initial stage when  the  complaint
\nas  well  as  documents  accompanying  the  same  do not
\nconstitute any offence,<\/p>\n
II) vicarious liability of a person for being prosecuted
\nfor the offence committed by the Company under  the  Act
\narises if at the material time the accused was in-charge
\nof  and  responsible  for  conduct  of  business  of the
\nCompany or offence is  committed  with  the  consent  or
\nconnivance  of such person (Director) or attributable to
\nneglect on his part.  Simply because  the  person  is  a
\nDirector  of  the  Company, it does not necessarily mean
\nthat he fulfills al the above referred  requirements  so
\nas to make him liable.\n<\/p>\n
43. While  applying  the  test provided and ratio laid
\ndown by the Apex Court to the present case, it is  clear
\nthat  in  the  complaints  in  question,  except general
\nstatement that the petitioners  were  Directors  of  the
\nCompany,  there  is no allegation to indicate even prima
\nfacie  that  offence  is  committed  with   consent   or
\nconnivance of them or same is attributable to neglect on
\ntheir part.   Since the complaints are totally silent on
\nthis issue, in my opinion, there is no legal  impediment
\nin quashing the impugned orders.\n<\/p>\n
44. Faced with the similar situation in the case of R.
\nBanerjee and others v.  H.D.  Dubey and others<\/a> ,  the  Apex  Court in para (7) of the judgment
\nobserved thus :\n<\/p>\n
 “It  would  then  be  necessary  for   the
\nprosecuting   agency   to  show  from  the
\naverments made in the complaint  that  the
\ncase   falls  within  sub-section  (4)  of
\nSection 17 of the Act.  If the prosecuting
\nagency fails to show that the offence  was
\ncommitted  with  the consent or connivance
\nof  any  particular   Director,   Manager,
\nSecretary  or other Officer of the Company
\nor on account of the negligence of any one
\nor more of them, the case set  up  against
\nthe   appellants   cannot  be  allowed  to
\nproceed.”\n<\/p>\n
Similarly, in para (9) of the said  judgment,  the  Apex
\nCourt observed thus :\n<\/p>\n
 “It  will  thus  be  seen that there is no
\nallegation in the complaint,  which  would
\nbring  the  case  within  the  mischief of
\nSection 17(4) of the Act.    There  is  no
\nallegation   in  the  complaint  that  the
\noffence was committed  with  the  consent\/
\nconnivance\/negligence  of  the  Directors,
\nother than the nominated person, who  were
\nimpleaded as    co-accused.      We   are,
\ntherefore, satisfied that the  allegations
\nin  the  complaint  do not make out a case
\nunder sub-section (4) of Section 17 of the
\nAct.  That being so, the inclusion of  the
\nco-accused  other than the Company and the
\nnominated person as the persons liable  to
\nbe  proceeded  against and punished cannot
\nbe justified.  As held by  this  Court  in
\nMunicipal    Corporation   of   Delhi   v.\n<\/p>\n
Ramkishan , where the allegations set out in  the
\ncomplaint  do  not constitute any offence,
\nno  process  can  be  issued  against  the
\nco-accused  other than the Company and the
\nnominated person and the High Court  would
\nbe  justified  in  exercising its inherent
\njurisdiction under Section 482 of Code  of
\nCriminal  Procedure,  1973  to  quash  the
\norder  passed  by  the  Magistrate  taking
\ncognizance  of  the  offence  against such
\nco-accused.”\n<\/p>\n
45. In the above case, the Supreme Court  was  dealing  with
\nidentical  situation  under the provisions of Prevention
\nof Food Aduleration Act.    In  the  instant  case,  the
\nallegations  in  the  complaints,  do  not make out case
\nunder sub-section (4) of  Section  17  of  the  Act  and
\nhence,  orders  of  issuance  of  process  passed by the
\nMagistrates need to be quashed and set aside.\n<\/p>\n
45)The Supreme Court in para 29 of  the  judgment  in
\nthe case  of  M\/s.    Pepsi Foods Limited and another v.
\nSpecial Judicial Magistrate and others , has observed thus :
\n “No doubt the Magistrate can discharge the
\naccused  at  any stage of the trial, if he
\nconsiders the charge to be groundless, but
\nthat does not mean that the accused cannot
\napproach the High Court under Section  482
\nof   the   Code  or  Article  227  of  the
\nConstitution  to   have   the   proceeding
\nquashed  against  him  when  the complaint
\ndoes not make out any case against him and
\nstill he  must  undergo  the  agony  of  a
\ncriminal trial.”\n<\/p>\n
46.      It  is  no  doubt  true  that  in the given set of
\ncircumstances, Magistrate may record pre-charge evidence
\nand pass an appropriate order if he is satisfied at that
\njuncture  that  the  charge  against  the   accused   is
\ngroundless.    However,   when   the   contents  in  the
\ncomplaints are accepted as they are and do not make  out
\na   prima  facie  case  against  the  accused,  in  such
\nsituation, in my opinion, there is no propriety to allow
\nsuch  prosecution  to  proceed   against   the   accused
\nparticularly  in  view  of  ratio  laid down by the Apex
\nCourt in  the  above  referred  judgment.     The   only
\nallegations   made   against  the  petitioners  for  the
\noffences in question are in the  specific  paragraph  of
\nthe complaints  as observed hereinabove.  What is stated
\nis that the  complainant  further  charges  accused  for
\ncommitting   offence   by   manufacturing,   for   sale,
\ndistributing for sale, stocking  for  sale  and  selling
\nadulterated  food  article in contravention of aforesaid
\nprovisions of the Prevention of Adulteration  Act,  1954
\nand rules thereunder.  The complainant is totally silent
\nin  regard  to  allegations  in respect of contingencies
\nmentioned in sub-section (4) of Section 17  of  the  Act
\nnor  even  makes out a prima facie case for the offences
\ncharged.   In  such  situation,  in  my   opinion,   the
\ncontention  canvassed  by  the learned Additional Public
\nProsecutor that Magistrate  may  be  permitted  to  pass
\nappropriate   orders   at   the  time  of  recording  of
\npre-charge evidence cannot be accepted and  in  view  of
\nthe  facts  and  circumstances  of the present case, the
\nratio laid down by the Apex Court in P.  Rajarathinam v.
\nState of Maharashtra and others<\/a>   is
\nnot   of   any   help  to  the  State  since  facts  and
\ncircumstances  in  the  case  before  Apex  Court   were
\nentirely different.\n<\/p>\n
47. Shri  Manohar,  learned  Senior  Counsel  for  the
\npetitioners,  though  initially  tried  to  canvass  the
\nground  regarding  nomination contemplated under Section
\n17(1)(a)(i), but  subsequently  made  a  statement  that
\npetitioners  do  not  want to press this ground and same
\nshould be kept open.  In the circumstances, it  is  open
\nto  prosecution  to  proceed against such person\/persons
\naccording to  law,  if  so  nominated  by  the  Company.
\nSimilarly,  it  will  be  open  for the Court to proceed
\nagainst  the  petitioners,  if  during  the  course   of
\nproceedings,  appropriate  fresh  evidence  is available
\nagainst them.\n<\/p>\n
48. As far as quashing of issuance of process  against
\nother  Directors  as contended by learned Senior Counsel
\nShri  Manohar  is  concerned,   these   Directors   were
\ninitially  made  parties as petitioners in Criminal Writ
\nPetition Nos.  245\/1998 and 246\/1998.  However,  at  the
\nlater  point  of  time, petitioners sought permission to
\ndelete the names of these Directors from  the  array  of
\nthe  petitioners  and this Court permitted such deletion
\nvide order dated 6.7.2000.   In  the  circumstances,  it
\nwill  not  be  possible to adjudicate upon this issue in
\ntheir absence and grant relief claimed  by  the  learned
\nSenior Counsel for the petitioners.  However, it is open
\nfor  these  Directors  to move the appropriate forum for
\nthe necessary relief.\n<\/p>\n
49. For the reasons stated hereinabove,  the  impugned
\norder  dated  18.8.1998  issued  by  the  Chief Judicial
\nMagistrate, Amravati  in  Criminal  Complaint  Case  No.
\n76\/1998,   impugned  order  dated  18.8.1998  passed  by
\nJudicial  Magistrate,  First  Class,  Akot  in  Criminal
\nComplaint Case   No.     146\/98,  impugned  order  dated
\n6.1.1999 passed by Chief Judicial Magistrate,  Akola  in
\nCriminal Complaint  Case  No.    10\/1999, impugned order
\ndated 15.1.1999 passed  by  Chief  Judicial  Magistrate,
\nAkola in  Criminal Complaint Case No.  31\/1999, impugned
\norder  dated   4.1.1999   passed   by   Chief   Judicial
\nMagistrate,   Akola   in  Criminal  Complaint  Case  No.
\n5\/1999, impugned order dated 24.3.2000 passed  by  Chief
\nJudicial  Magistrate,  Akola  in Criminal Complaint Case
\nNo.  393\/2000, impugned order dated 9.6.1999  passed  by
\nChief   Judicial   Magistrate,   Yavatmal   in  Criminal
\nComplaint Case  No.204\/1999  and  impugned  order  dated
\n17.6.1999  passed  by  Judicial Magistrate, First Class,
\nPusad in  Criminal  Complaint  Case  No.    81\/1999  are
\nquashed  and  set  aside  only  to  the  extent of above
\nreferred Directors (accused) of  the  Company,  who  are
\npetitioners\/applicants  in  the  present proceedings and
\nthe Magistrates are  directed  to  proceed  against  the
\nother accused according to law.\n<\/p>\n
50. The  petitions\/applications  are  allowed  in  the
\nabove terms.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Keki Bomi Dadiseth And Ors. vs The State Of Maharashtra on 17 January, 2002 Equivalent citations: 2002 BomCR Cri, 2002 (3) MhLj 246 Bench: D Sinha JUDGMENT 1. Heard Shri Manohar, learned Senior Counsel for the petitioners, and Mrs. Jog, Shri Jichkar, Shri Loney, Shri Dhote and Shri Patel, learned Additional Public […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-126824","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nKeki Bomi Dadiseth And Ors. vs The State Of Maharashtra on 17 January, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/keki-bomi-dadiseth-and-ors-vs-the-state-of-maharashtra-on-17-january-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Keki Bomi Dadiseth And Ors. vs The State Of Maharashtra on 17 January, 2002 - 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