As regards the submission of the learned advocate for the Petitioner on the aspect of not having valid consent as mandatorily required under Section 20 of the Act to prosecute the Petitioner for misbranding is concerned, it is pertinent to note that this contention was not raised either before the trial court or before the revisional court but for the first time it was raised before this Court and, therefore, that ground would not be available to the Petitioner. Still, however, it may be stated that on the said issue of consent, law has been laid down by the Hon'ble Apex Court in the case of Food Inspector, Ernakulam v. P.S. Sreenivasa Shenoy MANU/SC/0436/2000 : AIR 2000 SC 2577 : AIR 2000 SCW 2667 in paragraphs 24 and 28 as under:
24. We find the reasoning of the Division Bench of the Gujarat High Court in State of Gujarat v. Ambalal Maganlal 1978 Cri LJ 1036 (supra) as sound and in accordance with law. There is no good reason for making two different categories of cases with the help of Certificates issued by Central Food Laboratory. The Full Bench of the Himachal Pradesh High Court missed the basic legal position in this regard that report of the Public Analyst alone is contemplated for instituting the prosecution and consent or sanction is necessary only for such institution, and that a post-institutional development while exercising a statutory right conferred on the accused for challenging the report of the Public Analyst during trial is not a premise for turning the key backward for a fresh institution of the prosecution, whatever be the result of the analysis made by the Central Food Laboratory. Hence in our view the legal position propounded by the Full Bench of Himachal Pradesh High Court is erroneous.
28. We are, therefore, of the view that if the prosecution has been validly instituted, neither any new data nor any added reasons contained in the Certificate issued by the Director of the Central Food Laboratory would be sufficient to annul the sanction already obtained with which the prosecution was already instituted. The trial has to proceed with the Certificate on record which superseded the report of the Public Analyst.
It has been specifically held by the Hon'ble Supreme Court in the aforesaid reported case that when report of a Public Analyst was superseded by a certificate of Director of Central Food Laboratory, it is not necessary to obtain a fresh consent to institute prosecution and recommence the proceedings under the Act. It was also held that if the prosecution has been validly instituted, neither any new data nor any added reasons contained in the certificate issued by the Director of the Central Food Laboratory would be sufficient to annual the sanction already obtained with which the prosecution was already instituted.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Criminal Misc. Application No. 8392 of 2010
Decided On: 24.03.2011
Appellants: Nestle India Limited thro' Rajendra Rajput (Manager Sales)
Vs.
Respondent: State of Gujarat and Anr.
Vs.
Respondent: State of Gujarat and Anr.
Hon'ble Judges/Coram:
M.B. Shah, J.
M.B. Shah, J.
1. This petition under Section 482 of the Code of Criminal Procedure has been filed by the Petitioner for quashing and setting aside the order dated 7-6-2010 passed by learned Addl. Sessions Judge and Presiding Officer (Fast Track Court No. 4), Vadodara, in Criminal Revision Application No. 310 of 2008 as also order dated 8-8-2008 passed by learned Judicial Magistrate, First Class (Municipal), Vadodara below Exs.61 and 57 in PFA Case No. 3981 of 1997 and to discharge the accused No. 3 of the offences alleged in PFA Case No. 3981 of 1997 pending in the Court of learned Judicial Magistrate, First Class (Municipal), Vadodara.
2. The complaint in question was filed by Senior Food Inspector, Vadodara Municipal Corporation, in the Court of learned Judicial Magistrate, First Class(Municipal), against the applicant company for the offences punishable under Sections 2(ix)(a), 2(ix)(d), 7(1)(v) and 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954('the Act' for short) alleging inter alia that the sample of Mango Tikha Pickle (Maggi) collected at Shree Mahalaxmi Provision Stores of the applicant Company when sent to Public Analyst was reported to be adulterated and did not conform to the standards of pickle in edible oil laid down in item A.16.16.(ii) of Appendix-B of the Prevention of Food Adulteration Rules('the Rules for short). In pursuance of filing of said complaint, learned Magistrate sent the sample to Central Food Laboratory at the instance of accused No. 1. As per the report of Director, Central Food Laboratory also, the sample was adulterated and misbranded under Section 2(ix)(k) of the Act and the Rules. However, when the complainant was examined by the learned Magistrate at Ex.29, it was mentioned that sample was meeting with the standards as per the report of Central Food Laboratory and hence, the accused Nos. 2 and 3 filed applications at Ex.57 while the accused No. 1 filed application at Ex.61 for discharge. The learned Magistrate discharged the accused Nos. 1 and 2 while proceedings against the accused No. 3 were directed to be continued. When the said order was challenged by the accused No. 3 in revision before the learned Sessions Judge, Vadodara, it was dismissed with cost of Rs. 3,000/-.
3. Heard learned Counsel, Mr. K.I. Parekh for Ms. Megha Jani for the Petitioner, learned APP, Ms. C.M. Shah for the Respondent No. 1 and learned advocate, Mr. Nilesh A. Pandya for the Respondent No. 2.
4. It is submitted by learned Counsel for the Petitioner that in a complaint filed against the Company and its directors, the complainant has to mention whether the directors were either in charge or responsible for the day-to-day conduct or affairs of the management of the Company or not apart from mentioning name, address and other details. The complainant is not sure about the nomenclature of the accused otherwise, after the name, there used to Director/Partner/Manager/
5. It is also submitted that there was no allegation of misbranding against the Petitioner as per the report of Public Analyst. However, it was pointed out in the report of Central Forensic Laboratory that this is case of misbranding and, therefore, there is no sanction to prosecute the applicant under the purported offence of misbranding thereby there is a breach of mandatory provisions of the Act. It is therefore submitted that if consent was given for prosecution of one offence, prosecution in respect of another offence, in the present case 'misbranding', based on said consent cannot be sustained. Since there is no valid consent as mandatorily required under Section 20 of the Act to prosecute the Petitioner under 2(ix)(k) of the Act, it is submitted that Petitioner cannot be prosecuted under the charge based on the consent granted earlier since it was annulled or superseded by the report of Central Food Laboratory. Apart from that, complainant has specifically stated that when sample was sent to the Central Forensic Laboratory (CFL) at the instance of accused No. 1, sample was found to be meeting with the standards laid down under the Act.
6. It is further submitted that prosecution for the offences punishable under Section 7/16 of the Act cannot be instituted unless the details of offenders who have committed the alleged offences are mentioned in the written consent granted by the concerned Consenting Authority. As there was no valid consent granted in accordance with the provisions of Section 20(1) of the Act, it is requested that the applicant is required to be discharged.
7. Learned Counsel for the Petitioner has relied on the following decisions:
i) 1978(II) Prevention of Food Adulteration Cases page 136 of Bombay High Court in the case of State of Maharashtra v. Nizamuddin Haji Mohammed Kasam;
ii) 1990(2) Prevention of Food Adulteration Cases page 257 of Nagpur Bench of Bombay High Court in the case of A.K. Shirbhate (Food Inspector) v. Ramlal alias Ramnath and Anr.;
iii) Nagpur Bench of Bombay High Court in the case of Santanu S/o Jagatbandhu Sinha v. State of Maharashtra2007 ALLMR 3050; and
iv) Gujarat High Court in the case of State of Gujarat v. Narottambhai Chaganlal Thakkar and Ors. 2007 FAJ 412
8. Learned APP, Ms. C.M. Shah, on the other hand, has submitted that the orders passed by the trial court and the revisional court have been after perusing the documents and evidences and also considering the judgments relied on by the learned Counsel for the Petitioner and hence, it is urged that those findings may not be interfered in this petition.
9. This Court has gone through the orders of the trial court as well as the revisional Court together with the decisions cited by the learned Counsel for the Petitioner.
10. As regards the submission of the learned advocate for the Petitioner on the aspect of not having valid consent as mandatorily required under Section 20 of the Act to prosecute the Petitioner for misbranding is concerned, it is pertinent to note that this contention was not raised either before the trial court or before the revisional court but for the first time it was raised before this Court and, therefore, that ground would not be available to the Petitioner. Still, however, it may be stated that on the said issue of consent, law has been laid down by the Hon'ble Apex Court in the case of Food Inspector, Ernakulam v. P.S. Sreenivasa Shenoy MANU/SC/0436/2000 : AIR 2000 SC 2577 : AIR 2000 SCW 2667 in paragraphs 24 and 28 as under:
24. We find the reasoning of the Division Bench of the Gujarat High Court in State of Gujarat v. Ambalal Maganlal 1978 Cri LJ 1036 (supra) as sound and in accordance with law. There is no good reason for making two different categories of cases with the help of Certificates issued by Central Food Laboratory. The Full Bench of the Himachal Pradesh High Court missed the basic legal position in this regard that report of the Public Analyst alone is contemplated for instituting the prosecution and consent or sanction is necessary only for such institution, and that a post-institutional development while exercising a statutory right conferred on the accused for challenging the report of the Public Analyst during trial is not a premise for turning the key backward for a fresh institution of the prosecution, whatever be the result of the analysis made by the Central Food Laboratory. Hence in our view the legal position propounded by the Full Bench of Himachal Pradesh High Court is erroneous.
28. We are, therefore, of the view that if the prosecution has been validly instituted, neither any new data nor any added reasons contained in the Certificate issued by the Director of the Central Food Laboratory would be sufficient to annul the sanction already obtained with which the prosecution was already instituted. The trial has to proceed with the Certificate on record which superseded the report of the Public Analyst.
11. It has been specifically held by the Hon'ble Supreme Court in the aforesaid reported case that when report of a Public Analyst was superseded by a certificate of Director of Central Food Laboratory, it is not necessary to obtain a fresh consent to institute prosecution and recommence the proceedings under the Act. It was also held that if the prosecution has been validly instituted, neither any new data nor any added reasons contained in the certificate issued by the Director of the Central Food Laboratory would be sufficient to annual the sanction already obtained with which the prosecution was already instituted. In view of the above, the decisions cited by the learned Counsel for the Petitioner on this point would not be of any help to the Petitioner.
12. As regards the other submissions, it has rightly been held by the trial court after considering the provisions of Section 17 of the Act that if any nominee is appointed by the Company, it is the duty of the complainant to join him/her as accused. In case no nominee is declared by the Company, the person responsible for the day-to-day affairs or conduct of the management of the Company can be joined as accused. However, since the complainant has not disclosed the name of nominee or the person in charge of the day-to-day management affairs of the Company, the Company can be joined as accused. Inspite of writing letter by the complainant to the accused No. 3-the Petitioner Company, no reply has been given. Since the Company did not disclose the name of nominee, only option for the complainant was to join the company as an accused. It has also been rightly held by the trial court that even later on or during the proceedings also, nominee can be joined as an accused if any evidence to that effect is forthcoming. However, this question could not be decided at this juncture after framing of charge and during the proceedings of trial.
13. This Court in a similar situated case rendered in Special Criminal Application No. 576 of 2005 in the case of Kamalbens. Bhalerao and Ors. v. State of Gujarat and Ors. has held in paras 9 and 10 as under:
9. The submission of Shri Dave is untenable in eye of law. The fact remains to be noted that the organization in question had not nominated any person as required under the law to be person in charge and responsible for the conduct of the business of the Company. In absence of such nomination, the deeming provided under Section 17 of the PFA Act would come into play and every person who at the time of commission of offence was in charge of and was responsible in the company for the conduct of the business of the company; and the Company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. The proviso to Section 17(ii)(b) does provide for defense available to the persons so charged to prove that he was in fact not having any knowledge or that he exercised all due diligence to prevent such offence. This proviso, therefore, requires positive act of proving the lack of knowledge in respect of the offence and proving of due diligence to prevent the commission offence on the part of the persons subjected to prosecution by virtue of Section 17. Thus, only on account of the proviso, an application of discharge at the threshold of the trial was liable to be rejected.
10. The decision relied upon by Shri Dave in case of Gopishankar S. Vaid v. State of Gujarat MANU/GJ/0033/2001 : 2001(1) GLR 267 and State of Gujarat v. Ratilal Maganlal Shah and Ors. MANU/GJ/0208/1995 : 1995 (2) GLR 1542 would be of no avail to the Petitioners as in the instant case, the application for discharge was filed at the threshold of the trial only relying upon the proviso to Section 17, which requires positive proof of lack of knowledge and due diligence for preventing such offence on the part of the person, so charged for the commission of offence under the PFA Act. The ruling of the Apex Court in case of M/s. Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors. 1997 (9) SC 279 is also of no avail to the Petitioners as there cannot be any dispute that discharge application was maintainable at any time. The fact remains that only relying upon the proviso of Section 17(ii)(b) of the Act, the discharge application was not liable to be allowed in absence of any positive proof in support of the contention of lack of knowledge or efforts of due diligence on the part of the Petitioners.
14. It has been further held by this Court in para 14 of the said judgment as under:
In view of the aforesaid discussion, it becomes clear that the Petitioners have no right to be discharged at the threshold of the trial only on the basis of the proviso to Section 17(i)(b). It goes without saying that the proviso under Section 17(i)(b) would be available to the accused Petitioners during trial, wherein, they will have the opportunity to prove that the offence alleged was committed without their knowledge and despite their due diligence to prevent it. At the threshold of the trial and in absence of any positive evidence suggesting the absence of knowledge on their part and due efforts of preventing the offence alleged, the accused Petitioners have no right to be discharged.
15. The Hon'ble Apex Court in 2010(2) Food Adulteration Cases page 310 in the case of Pepsico India Holdings Pvt. Ltd. v. Food Inspector and Anr. has held in para 39 as under:
39. ...It is now well established that in a complaint against a Company and its Directors, the Complainant has to indicate in the complaint itself as to whether the Directors concerned were either in charge of or responsible to the Company for its day-to-day management, or whether they were responsible for the Company for the conduct of its business. A mere bald statement that a person was a Director of the Company against which certain allegations had been made is not sufficient to make such Director liable in the absence of any specific allegations regarding his role in the management of the Company.
16. It has been observed by the Hon'ble Apex Court in the above reported case that in absence of any specific allegations regarding the role played in the management of the Company, the Director cannot be held liable based merely on a bare statement, they could not be prosecuted. However, in that reported case, a person has been nominated under 17(2) of the Act and hence, it has been held in para 41 of the said judgment as under:
41. Having considered the matter in its totality and also having regard to the fact that Somesh Dahale had been nominated under Sub-section(2) of Section 17 of the 1954 Act to be a person in charge of and responsible to the Company for the conduct of its business, we are of the view that the Appeals have to be allowed.
17. It is to be noted that in Pepsico(supra), the Company has declared name of nominee in charge of and responsible for the conduct of its business and in that case, manufacturer/partner/manager cannot be held liable in absence of specific allegation. However, as discussed above, in the present case, though letter was written by the complainant to the accused No. 3-Company, the Company has not replied to the same disclosing the name of the person or nominee who would be responsible for the conduct of the business. Since there is no nomination, the person responsible for the company will have to face the prosecution and the proviso to Section 17(i)(b) alone, in absence of any positive proof cannot entitle the Petitioners to be discharged. Therefore, the Petitioner would not be entitled to any benefit of decisions cited by its learned Counsel.
18. In view of the above, this petition is dismissed. Notice is discharged.
19. The observations made by this Court in this judgment being made for the purpose of deciding this petition shall not prejudice the parties in trial.
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