IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.302 of 2008 KISHORI LAL GUPTA, S/O LATE KBINDA PRASAD GUPTA, RESIDENT OF HOUSE NO. 24/22, KARANCHI KHANA, P.S. PHEELKHANA TOWN & DISTRICT KANPUAR (U.P.) .. PETITIONER Versus 1. THE STATE OF BIHAR 2. RAJESHWAR PRASAD, S/O NAME NOT KNOWN, PRESENTLY POSTED AS FOOD INSPECTOR, CIVIL SURGEON OFFICE, ROHTAS .. OPPOSITE PARTIES **** /4/ .05.2010 Heard the counsel for the parties. 2. This application is for quashing the order, dated 28.02.2007, passed by the Chief Judicial Magistrate, Rohtas at Sasaram in connection with Official Case No. 31 of 2007/Tr. No. 2746 of 2007 by which he has issued summons against the petitioner after taking cognizance of the offence under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954. 3. The case of the prosecution is that the sample of (Ashok) Sabzi Masala was purchased at 02.45 p.m. on 21.07.2006 from the shop of one Bihari Lal and it has been reported vide Report No. 2597, dated 17.08.2006, of the Public Analyst Bihar, Patna, that the said sample was adulterated and on 2 the basis of the said report the prosecution under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, has been recommended against the petitioner, who is a Manager of M/S Ashok Grih Udyog Kendra Private Limited, Nayaganj, Kanpur, and the cognizance has been taken against him. 4. The learned counsel for the petitioner submits that the taking of cognizance and issuance of summons against the petitioner is not permissible under the explanation of Section 17(2) of the Prevention of Food Adulteration Act, 1954, in view of the fact that vide Resolution, dated 23.03.1996, one Prem Chandra Dixit has been nominated to be the In-charge and responsible to the said company for the conduct of the business of the said company and it’s units of M/S Ashok Grih Udyog Kendra Private Limited, Nayaganj, Kanpur, and authorized to exercise all such powers and take all such steps as may be necessary to prevent the commission of any offence under the Prevention of Food Adulteration Act, 1954, and a copy of the Resolution having been attached which has been marked as Annexure 2 and the said nomination has already been accepted by the Production Manager, Prem Chandra Dixit, and the receipt of the same was also acknowledged to the local Health Authority 3 and has relied upon a decision reported in A.I.R. 1992 S.C., 1168 (R. Banerjee & Ors. Vrs. H.D. Dubey & Ors.). 5. The learned counsel for the State, however, having not controverted the factual position about the nomination of Prem Chandra Dixit as a Production Manager of the company nominated as In-charge and responsible for the said company. 6. However, having regard to the facts that one Prem Chandra Dixit having been nominated under Section 17(2) of the Prevention of Food Adulteration Act, 1954, the question for consideration whether the prosecution is liable against the petitioner who was the Manager of M/S Ashok Grih Udyog Kendra Private Limited, Nayaganj, Kanpur, and there is nothing against the petitioner about any consent or connivance or any aspect of negligence on the part of the petitioner for the occurrence. 7. The provision of the law is well established in decision reported in A.I.R. 1979 S.C., 1977 State (Delhi Admn.) Vrs. K. Nangia & Anr.) as well as in A.I.R. 1992 S.C., 1168 (R. Banerjee & Ors. Vrs. H.D. Dubey & Ors.) and from the plain reading of Section 17(2) of the Prevention of Food Adulteration Act, 1954, it is apparently clearly that where an 4 offence under the Act is alleged to have been committed then the person who has been nominated to be In-charge and responsible to the company for the conduct of the business shall be liable to be proceeded and punished. However, Section 17(2) of the Prevention of Food Adulteration Act, 1954, provides that if an offence has been committed by a company and it is proved that the offence has been committed with the consent and connivance of any other person as Director of Manager, i.e., person not nominated shall also deem to be liable to be proceeded and punished and in this connection it is relevant to mention paragraph 4 of the decision reported in A.I.R. 1992 S.C., 1168 (R. Banerjee & Ors. Vrs. H.D. Dubey & Ors.) which is reproduced as follows : “.......The scheme of sub-section (1) of Section 17 is, therefore, clear that the cases sub-sec.(2) of Section 17, he alone can be proceeded against and punished for the crime in question. It is only where no such person has been nominated that every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of its business can be proceeded against and punished......” 8. This view has also found place in decision 5 reported in A.I.R. 1979 S.C., 1977 State (Delhi Admn.) Vrs. K. Nangia & Anr.). 9. Hence, reverting back to the fact of the case at hand having taken into consideration the fact that the persons nominated by the company, as apparent from Annexure 2 which has not been controverted and, further, there is no material to suggest that there is consent and connivance of the petitioner and, hence, the order taking cognizance is not sustainable in the eye of law against the petitioner and, hence, the impugned order is set aside and the matter is remanded back with a direction to enquire into the question whether the nomination is proper and in accordance with law. 10. With these observations and directions, this application is allowed. S.A. ( Gopal Prasad, J. )