IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 157 of 2011. Judgement reserved on 9.11.2011. Date of decision: 9.12.2011. M/s Devyani Food Industry Pvt. Ltd., Plot No. 1-21, EPIL, Phase II, Village Thana-Baddi, Nalagarh, Distt. Solan, (H.P), through Rajnish Sharma, Quality Incharge. …..Petitioner. Vs. 1. State of Himachal Pradesh 2. Food Inspector, Kullu, H.P. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the petitioner : Ms. Vidushi Sharma, Advocate and Mr. K.K.Gupta, Advocate. For the Respondents : Ms. Ruma Kaushik, Addl. Advocate General. Kuldip Singh, Judge. This petition under Art. 227 of Constitution of India read with Section 482 Cr.P.C., has been filed for quashing, setting- aside judgement dated 29.4.2011 passed by learned Additional Sessions Judge, Fast Track Court, Kullu, in Criminal Revision No. 3 of 2011 with further prayer that second sample may be directed to be sent for analysis in accordance with law. Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… 2. The facts in brief are that Rajnish Sharma, Manager Quality Control in manufacturing unit of M/s Devyani Food Industries Pvt. Ltd. filed an application alongwith affidavit dated 3.12.2008 under section 13 (2) of the Prevention of Food Adulteration Act, 1954 (for short, Act) for sending second sample of Cream Bell Ice Cream for analysis at his expense, which was taken by the Food Inspector on 27.3.2008 from M/s Kullu Ice Cream Corner Kullu and found to be adulterated by Public Analyst, Kandaghat. M/s Devyani Food Industries Pvt. Ltd. being the manufacturer of Ice Cream was arrayed as an accused for violation of the Act. 3. The application was contested by the Food Inspector, it was pleaded that application is not maintainable. The first application filed by the nominee of petitioner M/s Devyani Food Industries Pvt. Ltd. was dismissed by the court. The date of packing of the adulterated Ice Cream is February 2008, whereas, the alleged nomination was approved on 22.8.2008. The petitioner has no right to apply for re-analysis of the sample in question. It has been stated that Managing Director of M/s Devyani Food Industries Pvt. Ltd., accused No. 2 is absconding from the process of the court since the year 2008. 4. The learned Chief Judicial Magistrate, Kullu held that nomination of Rajnish Sharma under Section 17 of the Act read with Rule 12(b) is not in accordance with law. Rajnish Sharma is not entitled to move the application, under Section 13(2) of the Act for analysis of second sample from the Central Food Laboratory. The learned Chief Judicial Magistrate on 19.11.2010 dismissed the …3… application. The learned Additional Sessions Judge on 29.4.2011 has affirmed the order dated 19.11.2010, hence the petition, under Art. 227 of Constitution of India read with Section 482 Cr.P.C. for quashing judgement dated 29.4.2011 and direction to send second sample for analysis to Central Food Laboratory. 5. I have heard Ms. Vidushi Sharma and Mr. K.K.Gupta, Advocates, learned counsel for the petitioner and learned Additional Advocate General for the respondent. The learned counsel for the petitioner has submitted that the two courts below have erred in dismissing the application of Rajnish Sharma nominee of the petitioner under Section 13(2) of the Act for sending the second sample for analysis to Central Food Laboratory. It has been submitted that valuable right of the petitioner under Section 13(2) of the Act has been taken away by the impugned judgement and thus a serious prejudice has been caused to the petitioner for defending the case effectively. The learned Additional Advocate General has supported the impugned judgement and has submitted that no case has been made out for interference. The learned Additional Advocate General has prayed for dismissal of the petitioner. 6. It has come on record that sample of ice cream was taken on 27.3.2008. The company received notice under section 13(2) of the Act on 8.6.2008. The Manager Quality Control of the company filed an application on 16.6.2008 under section 13(2) of the Act for sending second sample of the ice cream to Central Food Laboratory. This application was dismissed on 11.7.2008. The order dated 11.7.2008 was assailed in Cr.MMO No. 601 of 2009, which was …4… dismissed as withdrawn on 15.6.2009. The second application under Section 13 (2) of the Act has been filed on 30.3.2009 as observed in impugned judgement. 7. The section 17 authorises a company to nominate a Director or Manager as the person responsible under the Act. Sub- section (2) of section 17 of the Act is as follows:- “(2) Any company may, by order in writing, authorize any of its directors or managers (such manager being employed mainly in a managerial or supervisory capacity) to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission by the company of any offence under this Act and may give notice to the Local (Health) Authority, in such form and in such manner as may be prescribed, that it has nominated such director or manager as the person responsible, along with the written consent of such director or manager for being so nominated. Explanation.- Where a company has different establishments or branches or different units in any establishment or branch, different persons may be nominated under this sub-section in relation to different establishments or branches or units and the person nominated in relation to any establishment, branch or unit shall be deemed to be the person responsible in respect of such establishment, branch or unit.” 8. The Rule 12B provides how nomination is to be made under section 17. The rule 12B is as follows:- “12B.- Form of nomination of Director or Manager and his consent under section 17.- (1) A company may inform the Local (Health) Authority of the concerned local area, by notice in duplicate, in Form VIII containing the name and address of the Director or Manager, who has been nominated by it under sub- section (2) of section 17 of the Act to be in charge of and responsible to the company for the conduct of the business of the company or any establishment, branch or unit thereof: Provided that no such nomination shall be valid unless the Director or Manager who has been so nominated, gives his consent in writing and has affixed …5… his signature, in Form VIII in duplicate in token of such consent. (2) The Local (Health) Authority shall sign and return on copy of the notice in Form VIII to the company to signify the receipt of the nomination and retain the second copy in his office for record.” 9. The section 13(2) of the Act is as follows:- “On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.” 10. In Jagesh Kumar Khaitan vs. State of Punjab 1998 FAJ 368, one S.S.Virk appeared being the representative of the company under Section 17 of the Act. The objection was taken to the appearance of S.S. Virk that on the date of alleged commission of offence i.e. 22.6.1994 when the sample was taken, S.S. Virk was not the nominee of the company. This objection was upheld by the Chief Judicial Magistrate vide order dated 18.9.1997. A direction was given to the Managing Director to appear on behalf of the company. This order was challenged in the High Court. In the facts and circumstances of the case, the case was remanded by the High Court after holding as follows:- “………. Even if it is assumed for the sake of arguments that Shri Virk was nominated as …6… representative on 19th August, 1993, whether intimation regarding his nomination was received by the local authorities on 5th August, 1993 (sic 5th October 1993) or not…….” 11. The petitioner has relied on form No. VIII nomination of Devyani Food Industries Pvt. Ltd. in favour of Rajnish Sharma, vide resolution dated 14.3.2008 for conduct of business of the company’s plant/ unit situate at village Thana Baddi, Tehsil Nalagarh. This nomination was allegedly accepted on 14.3.2008 by Rajnish Sharma. The Local (Health) Authority area Solan allegedly acknowledged the receipt of nomination of Rajnish Sharma on 22.8.2008. The sub- section (2) of section 17 provides giving of notice of nomination to Local (Health) Authority. The sub-rule (2) of rule 12B further provides that Local (Health) Authority shall sign and return on copy of the notice in Form VIII to the company to signify the receipt of the nomination and retain the second copy in his office for record. In other words, till the Local (Health) Authority signs and returns copy of notice in Form VIII to company, it is no nomination in the eyes of law. In the petition, there is no averment that in fact notice of nomination was given to Local (Health) Authority, Solan after 14.3.2008 and before 27.3.2008 when the sample was taken. The Form VIII was allegedly signed by Local (Health) Authority area Solan only on 22.8.2008. The nomination of Rajnish Sharma under section 17(2) read with rule 12B of the Act cannot be said to be prior to 27.3.2008 when the sample was taken. 12. It is admitted position that company was served with notice under section 13(2) on 8.6.2008. The first application under …7… section 13(2) filed by the company has already been dismissed. The company has filed second application on 30.3.2009 under section 13(2) of the Act. The section 13(2) provides filing of application under section 13(2) within ten days from the receipt of notice under section 13(2). The second application has been filed by the company nearly after nine months. This is not permissible under section 13(2) of the Act. The purpose of section 13(2) is to get the second sample analyzed immediately before sample deteriorates. The two courts below have rightly appreciated the material on record. There is no merit in the petition, hence petition is dismissed. December 9, 2011. ( Kuldip Singh ), (Hem) Judge.