1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 691 OF 2006 1. Rasiklal S/o Manikchand Dhariwal Age : 67 Years, Occ.: Director of M/s Dhariwal Tobacco Products Ltd. Gat No. 1297/1298 Borade Mala, Shrirur, Dist. Pune. 2. Prakash S/o Rasiklal Dhariwal Age : 42 Yrs., Occ. : Director of M/s Dhariwal Tobacco Products Ltd. Gat No. 1297/1298 Borade Mala, Shrirur, Dist. Pune. .... PETITIONERS V E R S U S 1. The State of Maharashtra Through Government Pleader High Court of Judicature at Bombay, Bench at Aurangabad. 2. Sulindra S/o Shahajirao Kshirsagar Age : 30 Years, Occ.: Food Inspector, Food & Drugs Administration, M.S. State through Joint Commissioner, Food & Drugs Administration, M.S. State. .... RESPONDENTS 2 Mr. D.S.Bharuka,Advocate for Petitioner. Mr. S.G.Nandedkar, A.P.P. for State. [ CORAM : K.U.CHANDIWAL, J. ] DATE : 18/09/2009. ORAL JUDGMENT : 1. Heard Mr. D.S.Bharuka, learned counsel for accused and Mr. S.G. Nandedkar, learned A.P.P. for State. Rule. By consent, finally heard and decided. 2. The prosecution in terms of Section 7 (i), 2 (i-a), (a), 16 (i-a) (ii), 7 (v) Rule 62 and Section 16 and 17 of the Prevention of Food Adulteration Act (for short ‘ the Act ’ ) is subject of question by the petitioners herein. The learned counsel points and not disputed that there was a nomination of Shri. R.P.Dayama as a nominee from 25/8/1997. The Officer submits that the offence is dated 21/8/1997 and consequently, the nomination is not proper and there is infraction of Section 17 (4) of the Act. I find that the report of the Chemical Analyst is dated 20/10/1997 subsequent to the seizure, enabling the authorities to prosecute the matter for an offence under the Act. This follows that prior to the receipt of Analyst’s report, there could not have been prosecution of the accused/applicant. The sanction by the 3 competent authority is dated 19/12/1997. There is vivid deviation under the provision of the law from the competent authority as they were conscious at the time of sanction that the accused nos. 4 and 5 arrayed in the complaint, could not have been prosecuted. 3. The counsel submits that the complaint should have been only of against the mominee Shri. R.P.Dayama, but he is not arrayed as an accused. The date of offence would be naturally dated 20/10/1997 and on that day, Mr. R.P. Dayama was a nominee. There was no material before the learned Judge to issue process against the present petitioners to demonstrate their role, contribution or to show incharge of conduct of business. Thus, recitals in complaint do not disclose any offence. It appears that the Order is mechanically passed without scrutiny of the allegations in the complaint coupled with the documents. Taking these aspects in to consideration, the order of learned Magistrate of issuance of process against the present petitioner nos. 1 and 2 , Directors, was apparently erroneous. 4. The scope of Section 482 of Cr.P.C. Comes into play in present situation as indicated in the Judgment of (State of Maharashtra V/s M/s Shiv Datt and Sons, etc. reported in AIR 1992 SUPREME COURT 692) and also in the matter of Inder Mohan Goswami and another V/s State of Uttaranchal and others reported in( 2007 ) 12 SCC 1. 4 5. The order of process is naturally abused and patently unsustainable. Crim. Writ Petition No. 691 of 2006 allowed. Rule made absolute. [ K.U.CHANDIWAL ] JUDGE knp/Cri.WP691.06