{"id":201061,"date":"2010-03-16T00:00:00","date_gmt":"2010-03-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dr-vs-state-on-16-march-2010"},"modified":"2015-09-18T20:29:31","modified_gmt":"2015-09-18T14:59:31","slug":"dr-vs-state-on-16-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dr-vs-state-on-16-march-2010","title":{"rendered":"Dr vs State on 16 March, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Dr vs State on 16 March, 2010<\/div>\n
Author: H.N.Devani,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.MA\/4493\/1997\t 2\/ 15\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nMISC.APPLICATION No. 4493 of 1997\n \n\n \n\n\n \n\n \nFor\nApproval and Signature:\n \n \nHONOURABLE\nMS.JUSTICE H.N.DEVANI\n \n \n=========================================================\n\n\n \n\t  \n\t \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n\n \n\nDR.\nV KURIAN & 3 - Applicant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARA & 1 - Respondent(s)\n \n\n=========================================================\nAppearance\n: \nMR N\nD NANAVATI WITH MR D A DAVE FOR NANAVATY\nADVOCATES\nfor\nApplicants No.1 - 4. \nMR UMESH A TRIVEDI, ADDL. PUBLIC PROSECUTOR\nfor Respondent(s) : 1, \nNOTICE SERVED BY DS for Respondent(s) :\n2, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMS.JUSTICE H.N.DEVANI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 16\/03\/2010 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
The
\n\tfacts of the case stated briefly are that respondent No.2-Food
\n\tInspector, Godhra Circle, lodged a complaint in the Court of learned
\n\tJudicial Magistrate, First Class, Halol, alleging commission of the
\n\toffence under section 7 (2) which is punishable under section 16 (1)\n<\/p>\n
\t(a) (i)  of the Prevention of Food Adulteration Act, 1954 (the Act).
\n\tAccording to the complainant, he had visited the shop of one
\n\tMayankbhai Govindbhai Desai, accused No.1 along with panchas for the
\n\tpurpose of sampling on 01.03.1996. Amongst various other items
\n\tiodised salt in 1 Kg. packing were being old hence, he had purchased
\n\tsealed bags of the salt for the purpose of analysis thereof with the
\n\tconsent of the said Mayankbhai. Each bag was bearing label showing
\n\tthat the same was manufactured and packed by Sabarmati Salt Farmer s
\n\tSociety and that the iodine content was 50 PPM. After collecting the
\n\tsample in accordance with the provisions of the Act the same was
\n\tsent to the Public Analyst for analysis thereof. Upon analysis of
\n\tthe sample, it was found that the iodine content was 40.33 PPM and
\n\tnot 50PPM as indicated in the label. Hence, the sample was declared
\n\tas misbranded and the complaint in question came to be lodged. The
\n\tcomplaint came to be registered as Criminal Case No.490 of 1997 and
\n\tis pending in the Court of learned Judicial Magistrate, Halol, Dist:
\n\tPanchmahals.\n<\/p>\n
By
\n\tthis application under section 482 of the Code of Criminal
\n\tProcedure, 1973 (the Code), the petitioners have prayed to quash the
\n\tabove referred complaint and all proceedings pursuant thereto.\n<\/p>\n
Mr.\n<\/p>\n
\tN. D. Nanavati, learned Senior Advocate with Mr. D. C. Dave, learned
\n\tAdvocate for the petitioners has at the outset invited the attention
\n\tof the Court to the fact that  during the pendency of this
\n\tapplication, petitioner No.3-Arvindbhai Buch has passed away. A copy
\n\tof the death certificate indicating that petitioner No.3 has expired
\n\ton 28\/07\/1998 is placed on record. It is, accordingly, submitted
\n\tthat the proceedings qua the petitioner No.3 would stand abated.\n<\/p>\n
It
\n\tis further submitted that insofar as the petitioner No.1 is
\n\tconcerned, he was the Chairman of the society, whereas petitioners
\n\tNo.2 and 3 were the trustees of the society. Insofar as petitioner
\n\tNo.4 is concerned, he was the officiating Chief Executive of the
\n\tsociety. Inviting attention to the Explanation below section 17 of
\n\tthe Act which defines  company  to mean any body corporate and
\n\tincludes a firm or other association of individuals, it is pointed
\n\tout that the accused No.2 Society is a society registered under the
\n\tSocieties Registration Act, 1860 and as such would fall within the
\n\tdefinition of  company  as contemplated under section 17 of the
\n\tAct. It is accordingly submitted that the provisions of the Act as
\n\tapplicable to a company would be applicable to the society in
\n\tquestion. Inviting attention to section 17 of the Act, which makes
\n\tprovision for  Offences by companies  it is submitted that
\n\tsection 17 provides that where an offence under the Act has been
\n\tcommitted by a company, (a)(i) the person, if any, who has been
\n\tnominated under sub-section (2) to be in-charge of, and responsible
\n\tto the company for the conduct of the business of the company, or\n<\/p>\n
\t(ii) where no person has been so nominated, every person who at the
\n\ttime the offence was committed was in charge of and was responsible
\n\tto the company for the conduct of the business of the company; and,\n<\/p>\n
\t(b) the company, shall be deemed to be guilty of the offence and
\n\tshall be liable to be proceeded against and punished accordingly, it
\n\tis submitted that in the facts of the present case no person has
\n\tbeen nominated under sub-section (2) of section
\n\t17 of the Act, hence the provision of sub-clause (ii) of clause (a)
\n\tof sub-section (1) would be applicable to the facts of the present
\n\tcase. It is submitted that the petitioners herein, more
\n\tparticularly, petitioners No.1 and 2 have been arraigned as accused
\n\tin view of the fact that petitioner No.1 is the Chairman of the
\n\tsociety and petitioner No.2 is a trustee of the society, however, a
\n\tbare perusal of the complaint in question shows that there is no
\n\taverment to the effect that either of the said two petitioners were
\n\tin-charge of, and responsible to, the company for the conduct of the
\n\tbusiness of the company at the time of when the offence was
\n\tcommitted. Reliance is placed upon a decision of the Supreme Court
\n\tin case of Municipal
\n\tCorporation of Delhi Vs. Ram Kishan Rohtagi & Ors., AIR
\n\t1983 SC 67,
\n\tmore particularly paragraph 15 thereof, to submit that in absence of
\n\tany evidence to show, apart from the presumption drawn by the
\n\tcomplainant, that there is any act committed by the Directors from
\n\twhich a reasonable inference can be drawn that they could also be
\n\tvicariously liable, no case could be said to have been made out
\n\tagainst the directors. It is submitted that in the circumstances
\n\tinsofar as petitioners No.1 and 2 are concerned, no case can be said
\n\tto have been made out against them ex-facie on the allegations made
\n\tin the complaint and the proceedings against them are required to be
\n\tquashed. Insofar as petitioner
\n\tNo.4 is concerned, it is submitted that he is merely the officiating
\n\tChief Executive of the society and unless it is established that he
\n\twas routinely in-charge of and was responsible to the company for
\n\tthe conduct of the business of the company, he too cannot be held
\n\tliable.\n<\/p>\n
Opposing
\n\tthe application, Mr. U A Trivedi, learned Additional Public
\n\tProsecutor for the respondents has submitted that sub-clause (a) of
\n\tclause (i) of sub-section (1) of section 17 of the Act provides for
\n\tnomination of a person for the conduct of business who would be
\n\tin-charge of, and responsible to the company for the conduct of the
\n\tbusiness of the company. It is submitted that in the present case,
\n\tin the first place the society has not nominated any person under
\n\tsection 17 (1) (a) (i) of the Act, and now seeks to contend that all
\n\tother persons in-charge of the affairs of the society are also not
\n\tresponsible.  Attention is invited to the averments made in the
\n\tcomplaint to point out that the respondent No.2 Food Inspector had
\n\tsought for information from the society concerned and it is on the
\n\tbasis of the information provided by the society that the
\n\tpetitioners have been arraigned as accused in the complaint. It is
\n\tsubmitted that in absence of any nomination, the Chairman as well as
\n\tDirector would be held responsible, unless they prove that the
\n\toffence was committed without their knowledge and that
\n\tthey had exercised all due diligence to prevent the commission of
\n\tsuch offence as provided in the proviso to sub-section (1) of
\n\tSection 17 of the Act. It is submitted that the onus lies on the
\n\tpetitioners to prove that they are not liable to any be punished
\n\tunder the Act and that merely because they are Chairman and
\n\tDirectors of the company; they cannot be absolved of their liability
\n\tunder the Act. It is further submitted that prior to framing of the
\n\tcharge, evidence would be recorded as to whether there exists any
\n\tprima-facie evidence for framing a charge, hence, it is for the
\n\tpetitioners at that stage to lead evidence to show that they are not
\n\tin any manner responsible for the commission of the offence in
\n\tquestion. Reliance is placed upon a decision of the Supreme Court in
\n\tR
\n\tBanerjee and Others Vs. H D Dubey and Ors., (1992)
\n\t2 SCC 552,
\n\tto submit that where no person has been nominated under sub-section
\n\t(2) of section 17 of the Act, every person, who at the time of
\n\tcommission of offence was in-charge of and was responsible to the
\n\tcompany for the conduct of its business can be proceeded against and
\n\tpunished under the law.\n<\/p>\n
This
\n\tCourt has perused the record of the case and has considered the
\n\trival submissions advanced by the learned Advocates for respective
\n\tparties as well as the decisions cited at the bar.\n<\/p>\n
A
\n\tperusal of the complaint in question shows that the complainant has
\n\tstated therein that upon declaration of the product as misbranded by
\n\tthe Public Analyst, the Food Inspector had called for information as
\n\tregards the trustees of the registered society, who are accused No.2
\n\tto 7 in the complaint. On the basis of the said information, he had
\n\tsought for written consent of the competent authority for lodging
\n\tthe complaint in question. Under the provisions of section 17 (1)\n<\/p>\n
\t(a) (ii) where no person has been nominated under sub-clause (i) of
\n\tclause (a), every person who at the time the offence was committed
\n\twas in charge of and was responsible to the company for the conduct
\n\tof the business of the company shall be deemed to be guilty of the
\n\toffence and shall be liable to be proceeded against and punished
\n\taccordingly. It may be pertinent to note that in the entire
\n\tcomplaint there is no averment to the effect that any of the
\n\tpetitioners were in-charge of, and were responsible to, the society
\n\tfor the conduct of the business of the society at the relevant time
\n\twhen the offence is alleged to have been committed.\n<\/p>\n
The
\n\tlaw in this regard is by now well settled. In Municipal
\n\tCorporation of Delhi Vs. Ram Kishan Rohtagi & Others
\n\t(supra),
\n\tthe Supreme Court in the facts of the said case found that so far as
\n\tthe Manager was concerned, from the very nature of his duties
\n\tit could be inferred that he would undoubtedly be vicariously liable
\n\tfor the offence; vicarious liability being an incident of an offence
\n\tunder the Act. So far as the Directors were concerned, there was not
\n\teven a whisper nor a shred of evidence nor anything to show, apart
\n\tfrom the presumption drawn by the complainant, that there was any
\n\tact committed by the Directors from which a reasonable inference
\n\tcould be drawn that they could also be vicariously liable. The
\n\tCourt, accordingly, found that no case had been made out against the
\n\tDirectors on the allegations made in the complaint and that the
\n\tproceedings against them had rightly been quashed by the High Court.\n<\/p>\n
In
\n\tR
\n\tBanerjee and Others
\n\tVs. H. D. Dubey and others, (supra)
\n\ton which reliance has been placed by the learned Additional Public
\n\tProsecutor, the Supreme Court held thus <\/p>\n
 4.
\nIt is clear from the plain reading of Section 17 that where an
\noffence under the Act is alleged to have been committed by a company,
\nwhere the company has nominated any person to be in charge of, and
\nresponsible to, the company for the conduct of its business that
\nperson will be liable to be proceeded against and punished for the
\ncommission of the offence. Where, however, no person has been so
\nnominated, every person who at the time of the commission of the
\noffence was in charge of, and responsible to, the company for the
\nconduct of its business shall be proceeded against and punished for
\nthe said crime. Even in such cases the proviso offers a defence, in
\nthat, the accused can prove his innocence by showing that the offence
\nwas committed without his knowledge and notwithstanding
\nthe exercise of due diligence to prevent it. The scheme of
\nsub-section (1) of Section 17 is, therefore, clear that the cases
\nwhere a person has been nominated under sub-section (2) of Section
\n17, he alone can be proceeded against and punished for the crime in
\nquestion. It is only where no such person has been nominated that
\nevery person who at the time the offence was committed was in charge
\nof, and was responsible to, the company for the conduct of its
\nbusiness can be proceeded against and punished. The proviso, however,
\nlays down an exception that any such person proceeded against shall
\nnot be liable to be punished if he proves that the offence was
\ncommitted without his knowledge and that he had exercised all due
\ndiligence to prevent the commission thereof. Sub-section (2) of
\nSection 17 empowers the company to authorise any of its Directors or
\nManagers to exercise all such powers and take all such steps as may
\nbe necessary or expedient to prevent the commission by the company of
\nany offence under the Act.\n<\/p>\n
   In
\nthe said case, the main controversy before the Supreme Court was as
\nto whether when the company had nominated a person under sub-section
\n(2) of Section 17 of the Act, the Directors could be proceeded
\nagainst and punished for the crime. Another issue was as regards the
\nvalidity of the nomination. In the circumstances, the said decision
\ndoes not carry the case of the prosecution any further.\n<\/p>\n
In
\n\tthe case of State of Haryana
\n\tVs. Brij Lal Mittal & Ors.,
\n\t(1998) 5 SCC 343,
\n\tthe Apex Court while construing the provisions of Section 34 of the
\n\tDrugs and Cosmetics Act, 1940 which is in pari materia to
\n\tsub-section (2) of Section 17 of the Act held that the vicarious
\n\tliability of a person
\n\tfor being prosecuted for an offence committed under the Act by a
\n\tcompany arises if at the material time he was in charge of and was
\n\talso responsible to the company for the conduct of its business.
\n\tSimply because a person is a director of the company it does not
\n\tnecessarily mean that he fulfills both the above requirements so as
\n\tto make him liable. Conversely, without being a director a person
\n\tcan be in charge of and responsible to the company for the conduct
\n\tof its business. In the facts of the said case, the Court that
\n\texcept a bald statement in the complaint that the respondents
\n\ttherein were directors of the manufacturers, there was no other
\n\tallegation to indicate, even prima facie, that they were in charge
\n\tof the company and also responsible to the company for the conduct
\n\tof its business. The Court placed reliance upon its earlier decision
\n\tin case of Municipal Corporation of Delhi Vs. Ram Kisan Rohtagi
\n\t(supra) and held that no case against the director has been made out
\n\tex facie on the allegations made in the complaint.\n<\/p>\n
In
\n\tcase of S.M.S.\n<\/p>\n
\tPharmaceuticals Ltd. Vs. Neeta Bhalla & Another, (2005)
\n\t8 SCC 89,
\n\ton which reliance has been placed by the learned Advocate for the
\n\tpetitioners, the Supreme Court while construing a similar provision
\n\tunder the Negotiable Instruments Act, 1881 held that there was
\n\talmost unanimous judicial opinion that necessary averments ought to
\n\tbe contained in a complaint before a person can be subjected to
\n\tcriminal process. A liability under Section 141 of the Negotiable
\n\tInstruments Act (NI Act) is sought to be fastened vicariously on a
\n\tperson connected with a company, the principal accused being the
\n\tcompany itself. It is a departure from the rule in criminal law
\n\tagainst vicarious liability. A clear case should be spelled out in
\n\tthe complaint against the person sought to be made liable. What is
\n\trequired is that the persons who are sought to be made criminally
\n\tliable should be, at the time the offence was committed, in charge
\n\tof and responsible to the company for the conduct of the business of
\n\tthe company. That the respondent falls within the parameters of
\n\tSection 141 of the NI Act has to be spelled out. A complaint has to
\n\tbe examined by the Magistrate in the first instance on the basis of
\n\taverments contained therein. If the Magistrate is satisfied that
\n\tthere are averments to bring the case within Section 141 of the NI
\n\tAct, he would issue the process. That merely being described as a
\n\tDirector in a company is not sufficient to satisfy the requirement
\n\tof Section 141 of the NI Act. The Court, accordingly, held that it
\n\tis necessary to specifically aver in a complaint under Section 141
\n\tthat at the time offence was committed, the person
\n\taccused was in charge of, and responsible for the conduct of
\n\tbusiness of the company. This averment is an essential requirement
\n\tof Section 141 and has to be made in a complaint. Without this
\n\taverment being made in the complaint, the requirement of Section 141
\n\tcannot be said to be satisfied.\n<\/p>\n
From
\n\tthe principles enunciated in the decisions referred to herein above,
\n\tit is abundantly clear that for the purpose of prosecuting a person
\n\ton the ground that he is vicariously liable for an offence under the
\n\tAct committed by a company, it is necessary for the complainant to
\n\tspecifically aver in the complaint that said person was in charge
\n\tof, and was responsible to the company for the conduct of the
\n\tbusiness of the company at the relevant time when the offence under
\n\tthe Act was committed. Insofar as the proviso to sub-section (1) of
\n\tSection 17 of the Act is concerned, the same would be required to be
\n\tinvoked only when the provisions of sub-clause (a) of Section 17 of
\n\tthe Act are satisfied. The proviso to sub-section (1) of Section 17
\n\tcomes to the aid of a person falling under sub-clause (i) and (ii)
\n\tof Clause (a) of sub-section (1) of Section 17 inasmuch as it is
\n\topen for him to prove before the Court that the offence was
\n\tcommitted without his knowledge and that he had exercised all due
\n\tdiligence to prevent the commission of such offence and should not
\n\theld liable for the offence in question.\n<\/p>\n
Examining
\n\tthe facts of the present case in the light of the aforesaid
\n\tdecisions, as already noted herein above, in the facts of the
\n\tpresent case there are no specific averments made in the complaint
\n\tto the effect that the petitioners No.1 and 2 were in charge of, and
\n\twere responsible to, the accused No.2 society for the conduct of the
\n\tbusiness of the society, therefore, the basic ingredients for
\n\tprosecuting the said petitioners on the ground that they are
\n\tvicariously liable for the offence committed by the accused No.2
\n\tsociety are not satisfied. Hence, insofar as petitioners No.1 and 2
\n\tare concerned, they cannot be prosecuted for the alleged commission
\n\tof offence and as such the application deserves to be allowed qua
\n\tthe said petitioners.\n<\/p>\n
Insofar
\n\tas petitioner No.4 is concerned, he stands on the different footing.
\n\tAs is evident from the cause title of the application, petitioner
\n\tNo.4 is the officiating Chief Executive of the society. Thus, from
\n\this designation itself, it is apparent that the petitioner No.4 as
\n\tofficiating Chief Executive would be in charge of the affairs of the
\n\tcompany. Merely because the designation is officiating
\n\tChief Executive and not Manager would not absolve the petitioner
\n\tNo.4 from his responsibilities in connection with the affairs of the
\n\tsociety as he would be directly in charge of the affairs and as such
\n\tvicariously liable for the offence committed by the society. In the
\n\tcircumstances in light of the law laid down by the Apex Court in
\n\tMunicipal
\n\tCorporation of Delhi
\n\tVs.\n<\/p>\n
\tRam Kishan Rohtagi & Others
\n\t(supra),
\n\tthe petitioner No.4 from the very nature of his duties would
\n\tundoubtedly be vicariously liable for the offence and as such, is
\n\tnot entitled to any relief as prayed for.\n<\/p>\n
In
\n\tview of the above discussion, the application is allowed qua
\n\tpetitioners No.1 and 2. Criminal Case No.490 of 1997 pending in the
\n\tCourt of learned Judicial Magistrate, First Class, Halol, District:
\n\tPanchmahals is hereby quashed qua petitioners No.1 and 2. Rule is
\n\tmade absolute qua the said petitioners. Considering the fact that
\n\tpetitioner No.3 has expired during the pendency of the application
\n\tthe application shall be treated as abated insofar as petitioner
\n\tNo.3 is concerned. Insofar as petitioner No.4 is concerned, the
\n\tapplication stands rejected. Rule is, accordingly discharged qua
\n\tpetitioner No.4.\n<\/p>\n
(H.N.DEVANI,
\nJ.)<\/p>\n
sompura<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Dr vs State on 16 March, 2010 Author: H.N.Devani,&Nbsp; Gujarat High Court Case Information System Print CR.MA\/4493\/1997 2\/ 15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 4493 of 1997 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================================= 1 Whether Reporters of Local Papers may be allowed to […]<\/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":[16,8],"tags":[],"class_list":["post-201061","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nDr vs State on 16 March, 2010 - 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\/dr-vs-state-on-16-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dr vs State on 16 March, 2010 - 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