IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 5TH FEBRUARY 2008 / 16TH MAGHA 1929 Crl.MC.No. 8021 of 2001(C) ------------------------------- C.C. NO. 151/2001 of JUDICIAL FIRST CLASS MAGISTRATE-I, KANJIRAPPALLY. PETITIONER/ACCUSED 3 & 4: ---------------------------------- 1. K.J. THOMAS, PARTNER, M/S. KERALA TRADERS, KANJIRAPPALLY, NOW RESIDING AT KUNNATHU, KANJIRAPPALLY. 2. SHERLY BABU, PARTNER, M/S. KERALA TRADERS, KANJIRAPPALLY, NOW RESIDING AT KUNNATHU, KANJIRAPPALLY. BY ADV. SRI.MATHEW JOHN (K) SRI.BABY THOMAS RESPONDENTS/COMPLAINANT: ----------------------------------- 1. P.V. BABURAJAN, FOOD INSPECTOR, KANJIRAPPALLY CIRCLE, KANJIRAPPALLY. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI. C.M. NAZAR, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05.02.2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.C. NO. 8021/2001 : 2 : ORDER ON CRL.M.P. NO. 6083/2001 IN CRL.M.C. NO. 8021/2001 DISMISSED 05.02.2008 sd/- A.K. BASHEER, JUDGE. /True Copy/ P.A to Judge. A.K. BASHEER, J = = = ======== = = = = = Crl.M.C. No. 8021 of 2001 = = = = = = = = = = = = = Dated this the 5th day of February, 2008. = = = = = = = = == = = = = = = = = = = O R D E R Petitioners who have been arraigned as accused Nos. 3 and 4 in Annexure A complaint, pending on the file of the Judicial Magistrate of First Class- I, Kanjirappally, seek to quash the above proceedings pending against them. 2. Annexure-A complaint has been preferred by respondent No.1, the Food Inspector, Kanjirappally circle, alleging that the gingelly oil purchased by him from the grocery shop of accused No.1 on 20.9.2000, was certified by the public analyst to be adultered under the provisions of the Prevention of Food Adulteration Act (herein after referred to as “the Act”) and the Rules thereunder. It was further alleged in Annexure A complaint that accused No.1, the vendor of the grocery shop had stated before the Food Inspector that the stock of gingelly oil in question was purchased by him from M/s Kerala Traders at Kanjirappally. On enquiry, the Food Inspector had allegedly Crl.M.C. No. 8021 OF 2001 2 come to the conclusion that accused No.2, was the Managing Partner and the petitioners were partners in the above firm. M/s Kerala Traders was arraigned as accused No.5 while the petitioners were implicated as accused Nos. 3 and 4. 3. It is pointed out by the learned counsel for the petitioners that what had been alleged in the complaint is that petitioners had been implicated in the case since they were partners of the Firm. Inviting my attention to the provisions contained in Section 17 of the Act, it is contended by the learned counsel that only those persons who are found to be in charge of or responsible for the conduct of the business of the company can be prosecuted under the Act. He submits that the Managing Partner of the firm had been arraigned as accused No.2. Partners had no active role or participation in the affairs of the company. They had not been in charge of or responsible for the conduct of the business of the company. 4. In this context, learned counsel has invited my attention to a decision of their Lordships of the Supreme Court in Municipal Corporation of Delhi vs. Ram Kishan Rohtagi and others (AIR 1983 SC 67). In the above decision it has been held Crl.M.C. No. 8021 OF 2001 3 that in the absence of any specific allegation/averment or any material piece of evidence to show that the directors of the company were in charge of or responsible for the conduct of the business, it was not proper to prosecute them. 5. Having regard to the materials available on record, I am satisfied that the petitioners are not liable to be prosecuted for the mere fact that they were alleged to be partners of the firm. However it is made clear that it will be open to the court below to take recourse to the provisions contained in the Act, if at a later stage it is found that the petitioners were also in charge of or responsible for the conduct of the business of the firm, namely, M/s. Kerala Traders. Therefore the Crl. M.C. allowed. The proceedings pending against the petitioners in C.C.No.151/2001 on the file of the Judicial First Class Magistrate I, Kanjirappally are quashed. A.K.BASHEER, JUDGE bkn/-