Coming now to the second question as to whether the nomination filed by the company on 25-11-1997 can be considered to be valid nomination, it is an admitted position that the said nomination does not bear the signature of the Local (Health) Authority in respect of acknowledgment of the receipt of said information and the said nomination was received by Clerk of Joint Commissioner (Nagpur Division) Office of Food and Drugs Administration, Maharashtra State, Nagpur. Rule 12-B(2) provides that the Local (Health) Authority shall sign and return a copy of the notice in Form VIII to the company to signify the receipt of nomination and retain the second copy in his office for record. The question is whether the receipt of nomination of Clerk in the office of Joint Commissioner (Nagpur Division) Office of Food and Drugs Administration, Maharashtra State, Nagpur can be considered is sufficient compliance of Rule 12-B(2) of the said Rules. I have already pointed out that the scheme of the Act and the Rules is that the Act has to be administered by Local (Health) Authority and for that purpose and for effective administration local areas have been defined in which the Local (Health) Authority functions and exercises control. Therefore, necessarily the nomination requires acknowledgment from the Local (Health) Authority. The Local (Health) Authority has to examine whether the nomination is in order and in case the nomination is in order the same is accepted and in token of having accepted the same the receipt of the nomination is acknowledged. There is no acknowledgment of Form VIII by the Local (Health) Authority. In cases under consideration the Local (Health) Authority had sent a letter dated 16-7-1998 enumerating defects in the nomination. This clearly shows that the nomination had not been accepted by Local (Health) Authority. The first objection recorded is that the resolution copy of the Board of Directors with regard to Wipro Limited, Consumers Lighting Godown, Plot No. 6, Hiranwar Layout, Khadgaon Road, Wadi, Nagpur is not attached in connection with the nomination. The other objection is that in Form VIII, the resolution meeting is mentioned as 27th September, 1991 and in the Board of Directors letter is mentioned as 18th August, 1995. Hence, the copy of Board of Directors' letter was sought for. What was sought vide letter dated 16-7-1998 was the Board of Directors' resolution dated 27th September, 1991 which had not been sent along with Form VIII, though it was stated therein that certified copy of the said resolution had been enclosed. Along with Form VIII resolution dated 18th August, 1995 had been enclosed. Once the Board of Directors' resolution dated 18th August, 1995 was in super session of all earlier resolutions, it was, therefore, necessary that in Form VIII resolution of Board of Directors dated 18th August, 1995 should have been mentioned instead of Board of Directors resolution dated 27th September, 1991. Obviously the matter required clarification in such a situation and the nomination in the circumstances could not have been accepted. Besides this, the nomination must mention the address of godown, unit or office of the company in respect of which the nomination is filed with the Local (Health) Authority. Rule 5(2} provides that, "the applicant shall furnish in the application in Form A, detailed information regarding location of the business premises which are intended for the manufacture for sale, for the storage or for the sale or for distribution of any article of food." This is required for proper and effective administration of the Act and the Rules by the Local (Health) Authority. At any rate, there is no explanation coming forward as to why this letter dated 16-7-1998 was not replied by the Branch Manager to whom it was addressed or by the company. A certified true copy of the resolution refers to in Form VIII is required to be enclosed along with the form. The said certified copy of resolution refers to in Form VIII which was Board of Directors' resolution dated 27th September, 1991 had not. been enclosed with the said form and as such the nomination cannot be said to be complete and vide letter dated 16-7-1998 enquiry No. 3 was made in this respect, but there was no reply.
23. In view of the aforesaid discussion, I am of the opinion that nomination in Form VIII filed on 25-11-1997 cannot be prima facie treated as a valid nomination. Therefore, the question of deleting the applicants in Criminal Applications No. 765 of 2000; 579 of 2001; and 584 of 2001 does not arise.
Bombay High Court
Azim H. Premji And Ors. vs State Of Maharashtra on 26 July, 2001
Equivalent citations: 2002 CriLJ 109, 2002 (1) MhLj 668
Bench: R Batta
1. In all these applications, the applicants seek direction to delete their names from the criminal cases filed against them in various courts. The applications were heard on merit.
2. Learned Advocate Shri R. Ravindran argued on behalf of the applicants and Shri B. R. Gawai, Public Prosecutor assisted by the Shri A. S. Pulzele, Additional Public Prosecutor argued on behalf of the non-applicant.
3. In order to appreciate the issues raised in these applications, it is necessary to first enumerate the facts in each of the applications. CRIMINAL APPLICATION NO. 765 OF 2000.
4. The Food Inspector, Food and Drugs Administration, Nagpur has filed Criminal Complaint No. 45 of 1999 in the Court of Additional Chief Judicial Magistrate, Nagpur against the applicants who are directors of M/s Wipro Limited DuParc Trinity, M. G. Road, Bangalore, wherein the Vendor and Branch Executive of Wipro Limited, Wadi Nagpur, the said Firm M/s Wipro Limited Duparc Trinity, Bangalore and nominee Shri S. K. Tokhi of M/s Wipro Limited DuParc Trinity, Amalner, District Jalgaon have been arraigned as other co-accused for having committed offences under Section a 16(1)(a)(ii) read with Section 7(i) read with Section 2(ia)(a) and (m) read with Section 17 of the Prevention of Food Adulteration Act, 1954 and the Rules made there under (hereinafter called the said Act). The prosecution case is that the Food Inspector had purchased three packs each of one liter Vanaspati from Vendor and Branch Executive of M/s Wipro Limited, Wadi, Nagpur after payment of Rs. 116.62 in respect of which a cash memo receipt bill No. 1507 dated 29-11-1997 was issued. The Public Analyst, Public Health Laboratory, Nagpur opined that the sample did not confirm to standards of Vanaspati as per item No. A.19.0 of the Prevention of Food Adulteration Rules, 1955 (hereinafter called as the said Rules). The complainant, Food Inspector, therefore, charged the accused Nos. 1 to 8 (the applicants are accused Nos. 2 and 7 in the said criminal case) for stocking for sale and selling adulterated food articles Vanaspati. As against accused Nos. 9 and 10, the charge is that they had committed an offence as regards manufacturing stocking and distribution for sale and selling an adulterated food articles Vanaspati to the Vendor M/s Wipro Limited, Wadi, Nagpur vide invoice No. 3451 dated 6-11-1997. CRIMINAL APPLICATION NOS. 579 OF 2001 AND 584 OF 2001.
5. The prosecution case as against the petitioners and others is almost same except that in 584/2001 the samples taken were 1500 gms. (500 x 3 packets) each of Vanaspati and the price paid was Rs. 59.53 paise. CRIMINAL APPLICATION NO. 580 OF 2001.
6. In this case, the Food Inspector on 7-10-1997 had taken sample of 1500 ml. Vanaspati (Sunflower) from Vendor Dinesh Harikisanji Tiwari, Proprietor of M/s Shri Balaji Agencies, Arvi, District Wardha on payment of Rs. 62.34 in respect of which a cash memo was issued by the said accused No. 1. The report of the Public Analyst disclosed that the sample did not confirm to the standard of Vanaspati as per the said Rules. Accused Nos. 2 to 9 have been charged for manufacture for sale and sale of adulterated food articles i.e. Vanaspati (Sunflower) to accused No. 1 vide invoice No. 1018 dated 20-9-1997 and thereby the accused had committed offences under Section s 16(1)(a)(ii) read with Section 7(1) read with Section 2(ia)(m) of said Act and Rules. Accused Nos. 2 to 8 are stated to be Directors of M/s Wipro Limited DuParc Trinity manufacturing for sale as also distribution for sale and sold food article Vanaspati (Sunflower). Accused No. 9 is M/s Wipro Limited, Amalner, District Jalgaon. CRIMINAL APPLICATION NO. 582 OF 2001.
7. In this case, accused No. 1 is Vendor, Partner and Nominee of accused No. 2 M/s Satish Kumar Omprakash Tiwari, Arvi, District Wardha and accused No. 3 is the proprietor of M/s Shri Balaji Agencies, Arvi, District Wardha. Accused Nos. 4 to 10 (the applicants) are the Directors of accused No. 11 M/s Wipro Limited, Amalner, District Jalgaon. On 7-10-1997, Food Inspector had taken sample of 1500 ml. Vanaspati (Sunflower) from accused No. 1 on payment of Rs. 54/- for which a cash memo was issued by accused No. 1. The sample taken did not confirm to the standards of Vanaspati as per the said Rules, as per opinion of Public Analyst. Accused Nos. 1 and 2 are, therefore, charged for stocking for sale and sold adulterated food articles i.e. Vanaspati (Sunflower); accused No. 3 is charged for stocking for sale and sold adulterated food articles i.e. Vanaspati (Sunflower) to accused Nos. 1 and 2 vide his bill dated 26-9-1997 and accused Nos. 4 to 11 have been charged for manufacturing for sale and sold adulterated article i.e. Vanaspati (Sunflower) to accused No. 3 vide invoice No. 1018 dated 20th September, 1997. Thus, according to the prosecution, accused have committed an offence under Section 16(1)(a)(ii) read with Section 7(i) read with Section 2(ia)(m) of the said Act and Rules.
8. Learned Advocate for the applicants has basically raised two points before me namely, the applicants have already nominated Shri S. K. Tokhi, Manager Quality Control and Laboratory, Amalner in terms of Section 17(2) of the said Act for the conduct of business of the company to be incharge of, and responsible to, the said Company for the conduct of business of the said company's offices situated in the State of Maharashtra and he was authorised to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission by the company of any offences under the said Act. A nomination in Form-VIII in terms of Rule 12-B of the said Rules was filed with the Chief Officer, Amalner Municipal Council on 24-12-1991 in respect of which acknowledgment of the receipt of the nomination has been given by the said Chief Officer of Amalner Municipal Council. According to the learned Advocate for the applicants, the filing of this nomination with the Chief Officer, Amalner Municipal Council within whose jurisdiction, the manufacturing unit of the company is situated, is sufficient for the purpose of whole of Maharashtra and there is no need or necessity to file" nomination with any other Local Authority in Maharashtra. It is, therefore, contended that since there is a valid nomination, the applicants cannot be prosecuted for the offences in question in view of Section 17 of the said Act.
9. The next point urged by the learned Advocate for the applicants is that the applicants had also nominated the said Shri S. K. Tokhi to be incharge of, and responsible, to the company for the conduct of business of the said company's godown situated at Wadi, Nagpur. In this connection, reliance is placed on Form-VIII filed under Rule 12-B of the said Rules which has been acknowledged by Clerk of Joint Commissioner (Nagpur Division) Office of Food and Drugs Administration, Maharashtra State, Nagpur. Learned Advocate for the applicants has urged that the licence in respect of said godown had been obtained separately from Food and Drugs Administration. It was urged by the learned Advocate for the applicants that though there was no necessity to separately file this nomination in view of the nomination filed at Amalner, District Jalgaon, Maharashtra yet by way of abundant caution this nomination was filed at Wadi since godown of a company was situated there. Wadi falls within the jurisdiction of Local (Health) Authority, Nagpur and Assistant Commissioner-II, Food and Drugs Administration, Maharashtra State, Nagpur, has been notified to be the Local (Health) Authority for the purposes of the administration of the said Act and Rules. He further urged before me that the applicants have performed their duty by sending nomination in Form-VIII under Rule 12-B of the said Rules along with necessary documents as also the consent in writing of the nominee Shri -S. K. Tokhi and the acknowledgment by the office of Joint Commissioner (Nagpur Division) Office of Food and Drugs Administration, Maharashtra State, Nagpur, is acknowledgment of the nomination by the Local (Health) Authority. He also pointed out that the objections raised by Assistant Commissioner-II, Food and Drugs Administration, Maharashtra State, Nagpur, who is the Local (Health) Authority vide letter dated 16-7-1998 are not only hyper technical and procedural in nature; but the said objections were raised after many months after receipt of nomination and it is required to be determined whether these objections raised in the said letter would vitiate the nomination. In respect of Objection No. 1, it is argued that neither me Act nor Rules nor nomination forms require that a copy of resolution of Board of Directors should be annexed. Objection No. 2 is that the nomination has been filed on letter head whereas it should be on plain paper and that three copies are required to be filed and the address of godown should be mentioned in the nomination Form-VIII. According to the learned Advocate for the applicants, this is merely hyper technical objection and does not affect the nomination. In respect of the third objection, it is stated that in Form-VIII resolution passed at its meeting held on 27th September, 1991 is mentioned but in the Board of Directors' letter, it is stated to be 18th August, 1995 and since there is contradiction, copy of the Board of Directors Resolution be sent. This objection, according to the learned Advocate for the applicants is again merely a technical objection. According to the learned Advocate for the applicants, the objections raised do not vitiate the nomination. However, learned Advocate for the applicants could not offer any explanation as to why no reply was sent by the Branch Manager, M/s Wipro Limited, Wadi, Nagpur in respect of the said letter dated 16-7-1998.
10. In support of his submission, learned Advocate for the applicants has placed reliance on R. Banerjee and Ors. v. H.D. Dubey and Ors. reported in 7992 Cri.LJ 1523 and Omesh Kumar Goel v. State of Haryana reported in 2000(1) FAC 174.
11. Learned P.P. urged before me that Section 7 of the Act prohibits any person or on his behalf manufacture for sale, storage for sale, sell and distribution for sale any adulterated food, misbranded food, any article of food for sale of which licence is prescribed, except in accordance with the conditions of the licence; any article of food the sale of which is for the time being prohibited by the Food (Health) Authority, in the interest of public health; any article of food in contravention of any other provision of this Act or of any rule made thereunder or any adulterant. The manufacture for sale, storage for sale, sale and distribution of articles in contravention ofSection 7 of the Act and the Rules made under the Act is punishable under Section 16 of the Act. According to the learned P. P., for each Local (Health) Authority, in which the manufacturing unit, godown/office for storage or sale or distribution for sale are located, a separate nomination is required to be filed and the nomination filed by the applicants at Amalner where the manufacturing unit is located is not sufficient in respect of the godown at Wadi where the articles of food were stored for sale and from where sample was taken by the Food Inspector in Criminal Application Nos. 765 of 2000, 579 of 2001 and 584 of 2001. In order to illustrate his submission, learned P.P. drew my attention to Section 2(vii) and (viii) which defines "Local Authority" and the "Local Area" comprised under the said Local Authority. He also pointed out to the definition of Local (Health) Authority contained in Section 2(viia) which in relation to a local area and means the officer appointed by the Central Government or the State Government, by notification in the Official Gazette, to be in-charge of Health administration in such area with such designation as may be specified therein. He further pointed out that in exercise of power conferred by clause (viia) of Section 2 of the said Act, the Government of Maharashtra has appointed Assistant Commissioner-II, Food and Drugs Administration, Nagpur, Maharashtra State, Nagpur to be Local (Health) Authority to be in-charge of the Health Administration which notification has been published in Maharashtra Government Gazette dated 23rd June, 1983. According to him, Wadi comes under the said Local (Health) Authority. According to the learned P.P., if the Unit manufacturing for sale is situated at place-A and the goods after manufacturing for sale are stored for sale at different premises at place-B and samples are taken at the manufacturing unit at place-A as well as where the article of food is stored for sale at place-B, the two different offences are made out in case the article of food at both places is found to be adulterated. According to the learned P.P. filing of the nomination at Amalner would not absolve the applicants of the duty and responsibility to file the nomination at Wadi where the godown for storage for sale is situated. He emphasized that in Rule 12-B, a company is required to inform Local (Health) Authority of the concerned local area, by notice in duplicate in Form-VIII. It is further urged by him that though a single person can be nominated for each area yet a valid notification is required to be filed in the local area in which the company carries on its business of manufacture for sale, storage for sale, sale or distribution for sale. He also drew my attention to Rule 12-B(2) of the Rules and pointed out that the Local (Health) Authority has to sign and return on a copy of the notice in Form-VIII to the company to signify the receipt of the nomination and second copy of the same is retained in the office for record. Accordingly, it is submitted that keeping in view the various relevant provisions of the Act and Rules, the nomination Form-VIII which was filed on 25-11-1997 cannot be considered to be a valid nomination and in the absence of a valid nomination, the applicants are liable for prosecution in view of Section 17(1)(a)(i) of the said Act. Insofar as the judgment of Omesh Kumar Goel v. State of Haryana (cited supra) is concerned, it has been submitted that the same is not applicable to the facts and circumstances in the cases under consideration and that the judgment of the Apex Court in R. Banerjee and Ors. v. H.D. Dubey and Ors. (cited supra) in fact supports the view that the nomination filed on 25-11-1997 in the office of Joint Commissioner (Nagpur Division), Food and Drugs Administration, Maharashtra State, Nagpur is incomplete as the acknowledgment of the receipt of the nomination has not been signed by the Assistant Commissioner-II, Food and Drugs Administration, Maharashtra State, Nagpur who is the Local (Health) Authority, In-charge of Health Administration of the area concerned and mere receipt of acknowledgment by the office is not sufficient. Learned P.P., therefore, contends that the criminal applications are liable to be dismissed.
12. In reply, learned Advocate for the applicants submits that in para 12 in Criminal Application No. 580 of 2001 and in para 13 of Criminal Application No. 582 of 2001, the applicants have pointed that the non-applicant is well aware of nomination which can be revealed from the fact that at page Nos. 65 to 67 of the complaint, they have filed the letter received from the company stating the name of the nominee. In these two cases, the nominee has not been made a party by the complainant. Learned Advocate for the applicants has reiterated that nomination at Amalner is sufficient for the whole of the State of Maharashtra and the nomination is not required to be filed with every Local Authority where the godown/office of the company is situated. Learned Advocate was asked that if it is so then why nomination was filed with the Local (Health) Authority at Nagpur within whose jurisdiction Wadi comes in which the godown where the articles of food are stored for sale, sale and distribution for sale, is situated, the answer was that it was only as a matter of abundant caution that the same was filed. He also pointed out that at Wardha, there is neither any office unit nor godown. Hence, insofar as the Criminal Application Nos. 580 of 2001 and 582 of 2001 are concerned, no nomination was required to be filed with the Local Authority having jurisdiction over Wardha . According to him, the manufacturer at Amalner has been joined in these two cases for which there is a valid nomination for Amalner and as such only nominee could be prosecuted and that the applicants cannot be prosecuted in Criminal Application Nos. 580 of 2001 and 582 of 2001.
13. In order to appreciate the arguments advanced on either side, it is necessary to first have a look into the provisions governing subject. Section 7 of the Act deals with prohibition of manufacture, sale etc. and certain articles of food and reads as under :--
"7. Prohibitions of manufacturer, sale, etc., of certain articles of food. -- No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute -
(i) any adulterated food;
(ii) any misbranded food;
(iii) any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence;
(iv) any article of food the sale of which is for the time being prohibited by the Food (Health) Authority [in the interest of public health;]
(v) any article of food in contravention of any other provision of this Act or of any rule made thereunder; [or]
[(vi) any adulterant.]
[Explanation. -- For the purposes of this section, a person shall be deemed to store any adulterated food or misbranded food or any article of food referred to in clause (iii) or clause (iv) or clause (v) if he stores such food for the manufacture therefrom of any article of food for sale.]
14. Section 16 provides for penalties inter alia amongst other for manufacture for sale, storage for sale, sale or distribution for sale of any article of food which is adulterated within the meaning of Sub-clause (m) of Clause (ia) of Section 2 or misbranded within the meaning of clause (ix) of that section or the sale of which is prohibited under any provision of Act or any Rule made thereunder or by an order of Food (Health) Authority. Thus, manufacturing for sale, storage for sale, sale or distribution for sale of an adulterated article is an offence under Section 16(1) read with Section 7 and Rules made under the Act. Section 17 deals with offence by companies and reads as under :--
"17. Offences by companies. -- (1) Where an offence under this Act has been committed by a company --
(a)(i) the person, if any, who has been nominated under Sub-section (2) to be in charge of, and responsible to, the company for the conduct of the business of the company (hereafter in this section referred to as the person responsible), or
(ii) where no person has been so nominated, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company; and
(b) the company,
shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence.
(2) Any company may, by order in writing, authorise any of its directors or managers (such manager being employed mainly in a managerial or supervisory capacity) to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission by the company of any offence under this Act and may give notice to the Local (Health) Authority, in such form and in such manner as may be prescribed, that it has nominated such director or manager as the person responsible, along with the written consent of such director or manager for being so nominated. Explanation. --"Where a company has different establishments or branches or different units in any establishment or branch, different persons may be nominated under this sub-section in relation to different establishments or branches or units and the person nominated in relation to any establishment, branch or unit shall be deemed to be the person responsible in respect of such establishment, branch or unit.
(3) The person nominated under Sub-section (2) shall, until -
(i) further notice cancelling such nomination is received from the company by the Local (Health) Authority; or
(ii) he ceases to be a director or, as the case may be, manager of the company; or
(iii) he makes a request in writing to the Local (Health) Authority, under intimation to the company, to cancel the nomination [which request shall be complied with by the Local (Health) Authority], whichever is the earliest, continue to be the person responsible :
Provided that where such person ceases to be a director or, as the case may be, manager of the company, he shall intimate the fact of such cesser to the Local (Health) Authority ;
Provided further that where such person makes a request under clause (iii), the Local (Health) Authority shall not cancel such nomination with effect from a date earlier than the date on which the request is made.
(4) Notwithstanding anything contained in the foregoing subsections, where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or the other office of the company [not being a person nominated under Sub-section (2)] such director, manager, secretary or other office shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation. -- For the purposes of this section --
(a) "Company" means any body corporate and includes a firm or other association of individuals;
(b) "director", in relation to a firm, means a partner in the firm; and
(c) "manager", in relation to a company engaged in hotel industry, includes the person in-charge of the catering department of any hotel managed or run by it.]"
In substance it provides that if any person has been nominated under Sub-section (2) the said person, or where no such person has been nominated every person who at time of the commission of the offence was incharge of and responsible to, the company-for the conduct of business of the company, and the company shall be deemed to be guilty of the offence and will be liable to be proceeded against and punished accordingly. This means that where there is nomination, the nominee and the company are liable to be prosecuted but where there is no nomination every person who at the time of the commission of the offence is incharge of, and responsible to, the company for the conduct of the business of the company as also the company are liable to be prosecuted. Sub-section (2) of Section 17 provides for nomination and notice of nomination is required to be given to the Local (Health) Authority in such form and in such manner as may be prescribed along with the written consent of the nominee. The explanation appended to Sub-section (2) of the Section 17 empowers the company having different establishments or branches or different units in any establishment or branch that different persons may be nominated in relation to different establishments or branches or units. Section 2(vi) provides for Food (Health) Authority and empowers the government to appoint by notification in official gazette Food (Health) Authority in order to exercise powers and perform the duties of the said authority with respect to such local area as may be specified in the notification.Section 2(vii) defines "Local Areas" and reads as under :--
"2(vii) "local area" means any area, whether urban or rural, declared by [the Central Government or the State Government] by notification in the Official Gazette, to be a local area for the purposes of this Act."
Section 2(viii) defines "local authority" with reference to local area and reads as under:--
"(viii) "local authority" means in the case of:--
(1) a local area which is --
(a) a municipality, the municipal board or municipal corporation;
(b) a cantonment, the cantonment authority;
(c) a notified area, the notified area committee;
(2) any other local area, such authority as may be prescribed by [the Central Government or the State Government] under this Act." Section 2(viiia) provides for "Local (Health) Authority", in relation to local area to be in-charge of Health Administration in such area. Section 2(viiia) reads as under:--
"2(viiia) "Local (Health) Authority", in relation to a local area, means the officer appointed by the Central Government or the State Government, by notification in the Official Gazette, to be in-charge of Health administration in such area with such designation as may be specified therein."
15. A reading of the above provisions would go to show that the emphasis is on local area and local authority and this is particularly so keeping in view the effective administration and enforcement of the Act. Section 7(iii) of the Act prohibits manufacture for sale or storage for sale, sale or distribution for sale of any article of food for the sale of which a licence is prescribed, except in accordance with the condition of the licence. Rule 50 of the said Rules provides that no person shall manufacture, sell, stock, distribute or exhibit for sale any article for food including prepared food or ready to serve food or irradiated food except under a licence. Rule 50(1A) of the said Rules provides that one licence may be issued by the licencing authority for one or more articles of food and also for different establishments or premises in the same local area. Rule 50(4) provides that if articles of foods are manufactured, stored or exhibited for sale at different premises situated in more than one local area, separate applications shall be made and a separate licence shall be issued in respect of such premises not falling within the same local area. This means that for manufacture, storage or exhibition for sale at different premises situated in more than one local area separate applications are required to be made and separate licences are required to be issued in respect of such premises not falling with the local area. Again the emphasis is on local area and this is obviously so for the purpose of effective implementation and administration of the Act. Rule 50(5) provides for inspection of the premises and the satisfaction of the licensing authority that the premises is free from sanitary defects. Rule 4(1) of the Maharashtra Prevention of Food Adulteration Rules, 1962 (hereinafter referred as Maharashtra Rules), provides that subject to provisions Rule 3, the local authority shall be responsible for the proper day to day administration and enforcement of the Act within its jurisdiction. Rule 4(2) of the Maharashtra Rules provides that the local authority, shall appoint health officer or health officers for the purposes of the Act, having jurisdiction over the whole or a part of its area as it may specify. Rule 5(1) of the Maharashtra Rules provides that any person desiring for the manufacture for sale, for the storage or sale or the distribution of articles for sale in respect of which a licence is required under Rule 50 of the Central Rules shall apply for licence in Form-A to the licencing authority appointed by the local authority. Rule 5(2) of the Maharashtra Rules provides that the applicant shall furnish in the application in Form-A, the detailed information regarding location of business premises which are intended for the manufacture for sale or for storage or for the sale or for distribution of any food article. Rule 5(3) provides that on receipt of application, the licencing authority shall, if on inspecting the said premises is satisfied with the premises is free from sanitary defects and the applicant complies with other conditions for holding licence, grant the applicant a licence in Form-B on payment of fees. In the application Form-A, a detailed address is required to be furnished and in the licence in Form-B also a detailed address is required to be mentioned.
16. The above discussion would go to show that a separate licence is required for each local area for the purpose of manufacture for sale, storage for sale, sale or distribution for sale in case the activity is carried by the company in any local area.
17. At this stage, I would like to refer to the judgment of Omesh Kumar Gael v. State of Haryana (cited supra) upon which heavy reliance was placed by the learned advocate for the applicants in support of his submission that filing of nomination with the Local (Health) Authority at Amalner is sufficient for the whole of the State of Maharashtra. In the case before the Punjab High Court, the Food Inspector had taken a sample on 30-7-1992 from shop keeper Ramprasad at Ghula. On application filed by Ramprasad, the Court had summoned Premkumar Goel. Premkumar Goel had claimed that he had already resigned from the service of M/s Haryana Milk Foods, Pehowa, which was also accepted by the Board of Directors with effect from 1-4-1991. He had been summoned because it was alleged that he was manager of manufacture of Ghee of tin "Madhu Ghee" out of which the sample was taken from the shop of Ramprasad. Then, Omeshkumar Goel being the Managing Director and In-charge of M/s Haryana Milk Foods Limited, Pehowa, was summoned who stated that one Praveen Talwar, Production Manager and Ashokkumar Jadon, Quality Control Manager, were in-charge and responsible for the conduct of the business of the company "Madhu Ghee" and necessary information was sent to Local (Health) Authority, Pehowa as per nomination and acceptance letter dated 4-11-1994 and, therefore, his name should be deleted. The Food Inspector objected to deletion of his name on the ground that no such intimation was sent to Local (Health) Authority at Ghula. The Sub-Divisional Magistrate found that the nominations were never acknowledged or accepted by the Local (Health) Authority since the acknowledgment was blank and there was no signature of the Local (Health) Authority for accepting the same. He also took note of the plea by the Government Food Inspector that no such nomination had been informed or acknowledged by the Local (Health) Authority at Ghula, and as such it cannot be said that the above mentioned two persons are properly nominated as being responsible to the company for conducting the business. The High Court found that the intimation had been delivered to Local (Health) Authority, Pehowa and since the manufacturing unit of Haryana Milk Foods Limited was situated at Pehowa, there was no necessity to file any nomination before the Local (Health) Authority at Ghula. In this case, the High Court found that the acknowledgment was not signed by Local (Health) Authority, Pehowa, but it was observed that it may be mistake on the part of the Local (Health) Authority concerned in not signing at or even the postman who delivered the letter in not getting the signature, but, the postal acknowledgment had been returned to the Haryana Milk Foods Limited indicating that the information has been served. In the case before the Punjab and Haryana High Court, the sample was taken from the vendor at Ghula from a tin of "Madhu Ghee" which was manufactured by Haryana Milk Foods Limited at Pehowa. It appears that the said Haryana Milk Foods Limited had no manufacturing unit or godown at Ghula and in such eventuality obviously there was no need to send any nomination to the Local (Health) Authority at Ghula. However, in the Criminal Application Nos. 765 of 2000; 579 of 2001; and 584 of 2001, the samples, have been taken by the Food Inspector from the godown of the company at Wadi, Nagpur where article of food in question was stored for sale. In Criminal Application Nos. 580/2001 and 582/2001 invoice INA 1018 dated 20-09-1997 shows that Vanaspati in question of which samples were taken had been sold from Godown at Wadi, Nagpur. Therefore, the authority upon which reliance has been placed by the learned Advocate for the applicants, does not in any manner help the case of the applicants.
18. In fact, from the judgment of the Apex Court in R. Banerjee v. H.D. Dubey (cited supra), upon which reliance has been placed by the learned Advocate for the applicants as also the learned P.P., it also appears that nomination is required to be filed with the Local (Health) Authority within whose jurisdiction the godown of the company is situated. In the case before the Apex Court, the short question which arose for consideration was whether it was permissible to launch a prosecution under Sub-section (1) of Section 17 of the Act against the Directors and Managers of Public Limited Companies, namely M/s Lipton India Limited and M/s Hindustan Lever Limited for the commission of alleged" offence punishable under the aforesaid provision notwithstanding the nomination made by the said companies as required under Sub-section (2) of Section 17 of the Act. The case of the Food Inspector was that he had visited the godown of M/s Lipton India Limited situated at Panagarh Jabalpur and had lifted samples of Tree Top Orange Drink in Tetrapacks and Dalda Vanaspati Ghee manufactured by the said two companies. All the three products namely Tree Top Orange Drink in Tetrapacks and Dalda Vanaspati Ghee manufactured by M/s Lipton India Limited as well as M/s Hindustan Lever Limited were found to be adulterated as per report of public analyst as they did not conform to the standard prescribed by the law. M/s Lipton India Limited had nominated one H. Dayani by company resolution dated 15th December, 1988 as the person to be in charge of, and responsible to, the company for the conduct of its business at its Nagpur Branch and intimation thereof was sent as required by Rule 12-B with the consent of the said H. Dayani to the concerned Local (Health) Authority. According to Mr. Dayani, Nagpur Branch had godown at Panagarh Jabalpur where Dalda Vanaspati and Tree Top Tetra packs were stored. Form VIII in terms of Rule 12-B was sent to Local (Health) Authority at Jabalpur. It is pertinent to note that the Food Inspector had taken sample from the godown of M/s Lipton India Limited situated at Panagarh, Jabalpur and nomination relied upon had also been filed at Jabalpur. However, it was noticed that in the nomination form Jabalpur had been cut and in place of Jabalpur Panagarh was written. It was contended by the State that the offending goods were stored at Panagarh of which the Local (Health) Authority was Civil Surgeon or Chief Medical Officer of District Jabalpur, the filing of nomination with Local (Health) Authority namely Health Officer of Jabalpur Municipality did not conform to the requirement of law. The Apex Court has pointed out in para 7 that if two companies succeed in showing that they had made valid nominations of H. Dayani and Dr. Nirmal Sen, respectively and had duly intimated the concerned Local (Health) Authority about the same before commission of offences then their case would fall under Section 17(1)(a)(i) and not under Section 17(l)(a)(ii) of the Act. In these circumstances, the Apex Court had directed the Court to inquire whether nomination was sent to, received and acknowledged by the competent Local (Health) Authority. Insofar as M/s Hindustan Lever Limited is concerned, the factory was at Shamnagar and its godown at Panagarh District Jabalpur where packets of Ghee were stored. The nomination in Fonn-VIII was sent to Local (Health) Authority, Bhatapara Municipality and Local (Health) Authority had signed the same in token of having accepted the nomination. The Apex Court found that it was not clear if the nomination had been signed by the competent Local (Health) Authority of the area in which the godown from which the offending goods were recovered was situated.
19. Therefore, in my opinion, it follows that a nomination is required to be sent to the Local (Health) Authority of the area in which the godown from which the offending goods are recovered is situated. Since the material on record was not sufficient in the case before the Apex Court, the matter was remanded to the trial Magistrate to enquire into the question whether the nomination forms nominating H. Dayani and Dr. Nirmal Sen were received and acknowledged by the Local (Health) Authority competent to receive and acknowledge the same. It was further observed that this question shall be decided as a preliminary question and if Magistrate comes to the conclusion that the nomination had been acknowledged by the competent Local (Health) Authority, the proceedings will be dropped against the Directors of the company. If it is found that the prescribed form had been acknowledged by the person other than the competent Local (Health) Authority, the Magistrate shall proceed against all persons including Directors, nominated persons and company.
20. Rule 12-B provides for form of nomination of Director or Manager and his consent underSection 17 and reads as under :--
"12B. Form of nomination of Director or Manager and his consent under Section 17. -- (1) A company may inform the Local (Health) Authority of the concerned local area, by notice in duplicate, in Form VIII containing the name and address of the Director or Manager, who has been nominated by it under Sub-section (2) of Section 17 of the Act to be in-charge of and responsible to the company for the conduct of the business of the company or any establishment, branch or unit thereof.
Provided that no such nomination shall be valid unless the Director or Manager who has been so nominated, gives his consent in writing and has affixed his signature, in Form VIII in duplicate in token of such consent.
(2) The Local (Health) Authority shall sign and return on copy of the notice in Form VIII to the company to signify the receipt of the nomination and retain the second copy in his office for record."
Under Rule 12-B, the company is required to inform the Local (Health) Authority of the concerned local area by notice in duplicate in Form VIII the nominee to be appointed under Sub-section (2) of Section 17. Section 17(2) of the Act also provides for notice to the Local (Health) Authority.Section 17(3) of the Act also emphasises the role of the Local (Health) Authority.
Rule 2 of Rule 12-B of the Rules provides that the Local (Health) Authority shall sign and return a copy of the notice in Form-VIII to the company to signify receipt of nomination and retain a second copy in his office for record.
21. From the above provisions, it is clear that nomination is required to be filed with the Local (Health) Authority having jurisdiction over the area where manufacture for sale, storage for sale, sale or distribution for sale is being carried out. Therefore, the contention of the learned Advocate for the applicants that the nomination filed at Amalner with the Local (Health) Authority of the said area is sufficient for the purpose of whole of State of Maharashtra is without any merit. In Criminal Applications No. 765 of 2000; 579 of 2001; and 584 of 2001, the samples have been taken by the Food Inspector from the godown of the company at Wadi where the article of food in question was stored for sale which has been found to be adulterated. In Criminal Application Nos. 580/2001 and 582/2001 invoice INA 1018 dated 20-9-1997 shows that the Vanaspati in question of which samples were taken had been sold from the godown at Wadi, Nagpur. The filing of the nomination at Amalner would not, therefore, absolve the directors namely, the applicants of their prosecution in these cases, unless there is a valid nomination filed with the Local (Health) Authority having jurisdiction at Wadi.
22. Coming now to the second question as to whether the nomination filed by the company on 25-11-1997 can be considered to be valid nomination, it is an admitted position that the said nomination does not bear the signature of the Local (Health) Authority in respect of acknowledgment of the receipt of said information and the said nomination was received by Clerk of Joint Commissioner (Nagpur Division) Office of Food and Drugs Administration, Maharashtra State, Nagpur. Rule 12-B(2) provides that the Local (Health) Authority shall sign and return a copy of the notice in Form VIII to the company to signify the receipt of nomination and retain the second copy in his office for record. The question is whether the receipt of nomination of Clerk in the office of Joint Commissioner (Nagpur Division) Office of Food and Drugs Administration, Maharashtra State, Nagpur can be considered is sufficient compliance of Rule 12-B(2) of the said Rules. I have already pointed out that the scheme of the Act and the Rules is that the Act has to be administered by Local (Health) Authority and for that purpose and for effective administration local areas have been defined in which the Local (Health) Authority functions and exercises control. Therefore, necessarily the nomination requires acknowledgment from the Local (Health) Authority. The Local (Health) Authority has to examine whether the nomination is in order and in case the nomination is in order the same is accepted and in token of having accepted the same the receipt of the nomination is acknowledged. There is no acknowledgment of Form VIII by the Local (Health) Authority. In cases under consideration the Local (Health) Authority had sent a letter dated 16-7-1998 enumerating defects in the nomination. This clearly shows that the nomination had not been accepted by Local (Health) Authority. The first objection recorded is that the resolution copy of the Board of Directors with regard to Wipro Limited, Consumers Lighting Godown, Plot No. 6, Hiranwar Layout, Khadgaon Road, Wadi, Nagpur is not attached in connection with the nomination. The other objection is that in Form VIII, the resolution meeting is mentioned as 27th September, 1991 and in the Board of Directors letter is mentioned as 18th August, 1995. Hence, the copy of Board of Directors' letter was sought for. What was sought vide letter dated 16-7-1998 was the Board of Directors' resolution dated 27th September, 1991 which had not been sent along with Form VIII, though it was stated therein that certified copy of the said resolution had been enclosed. Along with Form VIII resolution dated 18th August, 1995 had been enclosed. Once the Board of Directors' resolution dated 18th August, 1995 was in super session of all earlier resolutions, it was, therefore, necessary that in Form VIII resolution of Board of Directors dated 18th August, 1995 should have been mentioned instead of Board of Directors resolution dated 27th September, 1991. Obviously the matter required clarification in such a situation and the nomination in the circumstances could not have been accepted. Besides this, the nomination must mention the address of godown, unit or office of the company in respect of which the nomination is filed with the Local (Health) Authority. Rule 5(2} provides that, "the applicant shall furnish in the application in Form A, detailed information regarding location of the business premises which are intended for the manufacture for sale, for the storage or for the sale or for distribution of any article of food." This is required for proper and effective administration of the Act and the Rules by the Local (Health) Authority. At any rate, there is no explanation coming forward as to why this letter dated 16-7-1998 was not replied by the Branch Manager to whom it was addressed or by the company. A certified true copy of the resolution refers to in Form VIII is required to be enclosed along with the form. The said certified copy of resolution refers to in Form VIII which was Board of Directors' resolution dated 27th September, 1991 had not. been enclosed with the said form and as such the nomination cannot be said to be complete and vide letter dated 16-7-1998 enquiry No. 3 was made in this respect, but there was no reply.
23. In view of the aforesaid discussion, I am of the opinion that nomination in Form VIII filed on 25-11-1997 cannot be prima facie treated as a valid nomination. Therefore, the question of deleting the applicants in Criminal Applications No. 765 of 2000; 579 of 2001; and 584 of 2001 does not arise.
24. Coming now to the Criminal Applications No.580 of 2001 and 582 of 2001, it is pertinent to note that storage of an article of food for sale which is found to be adulterated in the godown will attract the provisions of sections 7 and 16 of the Act. In these two cases, the sample was taken from the vendor at Arvi, District Wardha and the article of food in question of which sample was taken had been supplied by the company from its godown at Wadi. Invoice No. 1018 dated 20th September, 1997 shows that the goods were supplied to the vendor from whom sample was taken from the godown, Plot No. 6, Hiranwar Layout, Khadgaon Road, Wadi, Nagpur. We have already come to the conclusion that there is no valid nomination under Rule 12-B filed before the Local (Health) Authority within whose jurisdiction this godown is situated. Therefore, even in these cases, I do not consider that this is a case for deleting the names of the applicants at this stage. Deleting the names amounts to quashing of proceedings and I do not consider that at this stage there is a case made out for the same.
25. Section 7 of the Act provides that no person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute an adulterated food etc. In case of companies, the primary liability of the persons in charge, and responsible to the company for the conduct of business of the company can be fastened on the nominee in case of valid nomination. Therefore, this transfer of primary liability to the nominee would be effective when there is strict and complete adherence to the provisions relating to nomination including the filing of valid nomination within the jurisdiction of the Local (Health) Authority in which the manufacturing unit, godown, office etc. conducting business is situated.
26. For the aforesaid reasons, I do not find any merit in all the criminal applications and the applications are rejected.
No comments:
Post a Comment