1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL JURISDICTION CRIMINAL APPLICATION NO. 2228 OF 2009 Mr. Puesh Kumar Gupta. ... Applicant. V/s. State of Maharashtra. ... Respondent. AND CRIMINAL APPLICATION NO. 2985 OF 2009 Mr. Rajiv Kumar Gupta. ... Applicant. V/s. State of Maharashtra. ... Respondent. Mr. M.M. Vashi i/b. M/s. M.P. Vashi & Assoc. for the Applicant. Ms. A.T. Jhaveri, APP for the State. CORAM : S.C. DHARMADHIKARI,J. DATED : 10th FEBRUARY 2010. P.C. :- These two applications are filed by the Applicants seeking quashing of the proceedings which are initiated under Prevention of Food Adulteration Act, 1954 and the Indian Penal Code. 2. It is alleged that C.R.No.1-203 of 2005 is registered with Narpoli Police Station, Bhiwandi. The offences alleged are punishable under Sections 2(a),(h),(i) and (v) of Prevention of Food Adulteration Act and Rule 43A of the Prevention of Food Adulteration Rules together with Sections 272, 273 and 420 of I.P.C. 3. The Applicants are alleging that they are on the Board of 2 Directors of Dharampal Satyapal Limited, a company incorporated under the provisions of Companies Act, 1956 having its registered office at New Delhi. The company manufactures panmasala and sells the same under the brand name of “Rajnigandha” all over India. It is alleged that there are other products. With a view to establish the business in the State of Maharashtra, the Company opened a depot and nominated one Pradeep Ghosh for the purpose of dealing with Konkan Region Food and Drug Administration of the Maharashtra State. This nomination was accepted, Mr. Ghosh represents the Company and it is Mr. Ghosh, who is the person within the meaning of Section 17(2) of the Act. 4. It is alleged that the State of Maharashtra issued an order and directed that manufacture and sale of Gutkha and panmasala containing “Magnesium Carbonate” is permissible only if the weight on the label and the ingredients are appropriately disclosed and the approval is obtained of the Joint Food Commissioner, State of Maharashtra. 5. It is alleged that certain offences have been committed inasmuch as the authorities discovered that the percentage of magnesium carbonate is not to the extent permitted and therefore, the C.R. was registered. 6. The nominee, Mr. Ghosh applied for anticipatory bail and as far as the Petitioners are concerned, they applied for quashing of the proceedings by filing a Writ Petition, which 3 came to be dismissed. The matter was carried to Supreme Court and it was clarified that the Petitioners can apply for relief under Section 482 of Cr.P.C. at an appropriate stage. 7. There are three independent private complaints before the Court of Judicial Magistrate, Bhiwandi which have been filed by the Inspector, Food and Drug Administration, State of Maharashtra. The Petitioners and other Directors are not mentioned as Accused. The Petitioners were apprehending arrest and therefore, moved an anticipatory bail application, which came to be granted on the basis that the report was submitted by the prosecution that the names of the Petitioners and other accused are deleted from the array of accused. In such circumstances, they have prayed for quashing of the proceedings. 8. I have heard Mr. Vashi, learned Advocate appearing on behalf of the Petitioners in both Applications and Ms. Jhaveri, learned APP for the State. On an earlier occasion, brother Justice Mr. A.S. Oka has passed an order directing filing of an affidavit to clarify the position with regard to the report submitted before the Sessions Court. The affidavit was filed on 13th August 2009. Being not satisfied with the said affidavit, the matter was adjourned to enable the authorities to file a complete and proper affidavit. Now, it is stated that the prosecution is handed over to the Senior Police Inspector Mr. Ashok Jagtap of Narpoli Police Station, Bhiwandi. Under his instructions, the Assistant Police Inspector attached to that Police Station has filed an affidavit and in paragraphs 1 and 2 4 of the same, this is what is stated :- “1. I say that in my affidavit that it is not clarified about a paragraph mentioning the report dated 28.11.2008 about second paragraph. According to our record the report received from the Food and Drug Department, dated 28.11.2008 and 31.07.2009 and report dated 21.01.2010. 2. I say that the reply filed by me on the basis of instructions given by the Food and Drug Department to me. I stated that the Food and Drug Department had filed the complaint against only company that is Messrs. Dharmpal Satyapal Ltd. and against one person that is nominee namely Pradeepkumar Ganesh Ghosh and all other persons were not charged for the Prevention of Food and Adulteration Act, 1954 u/s. 17(2). It is further clarified that in the present case alongwith the Food and Adulteration Act there are other offences u/s. 272, 273, 420 of the I.P.C. are also applied and the report says that apart from above mentioned company and it’s nominee other persons are not liable for the offence under Food and Adulteration Act.” 9. Mr. Vashi, therefore, submits that the FIR be quashed against the Applicants. Alternatively, he submits that it should be quashed to the extent of the offences punishable 5 under the Prevention of Food Adulteration Act and Rules thereunder. 10. The learned APP for the State submits that considering the nature and seriousness of the offences and since public interest is involved, this Court should not proceed on the statement made or the contents of the report but must allow the prosecution to bring home all the charges against the Accused. She submits that the statements on affidavit are made on the basis of the report which states that the offences under Prevention of Food Adulteration Act are alleged to have been committed by the Company and the nominee. As far as the Petitioners are concerned, they are also proceeded against for the offences punishable under I.P.C. In such circumstances, these applications be dismissed as the affidavits clarify that the charge-sheet has already been filed and prosecution has filed an application for clubbing of the cases. 11. After having perused the Petition and annexures and hearing the learned Counsel at some length, at the outset, it must be clarified that this Court is not issuing any directions with regard to clubbing of the cases. That is something which the learned Judge will consider after an appropriate application is made in that behalf. The learned Judge to hear both sides on the said application and pass an order in accordance with law. The learned Judge should not proceed on the basis that this Court has directed consolidation or amalgamation of the complaints/cases. 6 12. As far as the offences punishable under I.P.C. are concerned, chargesheet is filed, it would be open for the Petitioners to move the concerned Court and apply for discharge from the proceedings. All contentions and pleas of the Petitioners and the prosecution in that behalf are kept open, without expressing any opinion thereon. The discharge applications, if any made, should be decided by the concerned Court within a period of six weeks from the date of their institution. Till such time, the discharge applications are under consideration, the concerned Court shall not insist on the personal presence of the Petitioner/Applicant and if an appropriate application is made, exempt them from such appearance. If no application seeking discharge is filed within two weeks from today, the Trial Court is at liberty to proceed as per law. 13. A grievance was made that the Petitioners are not abiding by the conditions imposed while granting them anticipatory bail. As far as that aspect is concerned, no material is placed before me except the oral arguments of the learned APP. If there is any breach of such conditions, nothing prevents the prosecution from bringing it to the notice of the appropriate Court and for that Court to deal with in accordance with law. 14. In so far as the offences alleged under the Prevention of Food Adulteration Act 1954 are concerned, I have already reproduced the statements on affidavit which are based on 7 the contents of the report from the authorities. To my mind, Section 17 of the Act is clear. The Petitioners need not have any apprehension if the prosecution itself has proceeded against the Company and the nominee. If at a future stage, the Petitioners have any apprehension of their being proceeded against, they can point out to the appropriate Court by an appropriate application in that behalf. They can point out that in law in no case they can be proceeded with merely because they are Directors as there is a Nominee, who has been made as an Accused by the prosecution. In the light of the contents of the affidavit filed before this Court and the statements recorded therein, the apprehension that the Petitioners would be proceeded and arrested for such offences are not well founded. The statements on affidavit are accepted as an undertaking to this Court. 15. In the light of the statements made on affidavit, the Petitioners need not have any apprehension that they alone would be proceeded against by the prosecution, for offences punishable under Prevention of Food Adulteration Act. Presently, the prosecution has made the Company as an Accused so also the nominee. Since these statements are made on affidavit before this Court, the apprehensions, if any, are taken care of. 16. These applications are disposed off in the light of these statements and the observations made hereinabove. (S.C. DHARMADHIKARI,J.) 8