IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 24TH MARCH 2010 / 3RD CHAITHRA 1932 Crl.MC.No. 3210 of 2006() ------------------------- CC.379/2001 of ADDL. CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... PETITIONER(S): ACCUSED ---------------------- 1. P.M.K.RAGHUNATH, T.C.26/1664, M/S.SANTHA BAKERY AND STORES, PULIMOODE, THIRUVANANTHAPURAM. 2. P.M.K.PREMNATH, T.C.26/1664, M/S.SANTHA BAKERY AND STORES, PULIMOODE, THIRUVANANTHAPURAM. BY ADV. SRI.D.KISHORE RESPONDENT(S): STATE AND COMPLAINANT ------------------------------------ 1. STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE FOOD INSPECTOR, THIRUVANANTHAPURAM CORPORATION. R1 BY PUBLIC PROSECUTOR SRI.B.JAYASURYA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24/03/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. ------------------------------------------------------------ Crl.M.C. No. 3210 of 2006 ------------------------------------------------------------- Dated this the 24th day of March, 2010. ORDER Petition filed to quash Annexure-I complaint. 2. Petitioners are accused nos. 3 and 4 in the complaint. They are impleaded after filing of the complaint in the light of a petition filed as Annexure-II by the Food Inspector stating that nominee of accused expired (accused no.1). As per the available information no nomination is filed and on enquiry it was found that the partners of the second accused firm are accused nos. 3 and 4. In the light of the petition filed, the court impleaded the partners as accused nos. 3 and 4. 3. Annexure-I is a complaint filed by the Food Inspector against two accused originally who are the vendors-cum-nominee under Section 17(2) of the Prevention of Food Adulteration Act ('P.F.A. Act', for short) and also firm is the 2nd accused. As per the allegations in the complaint, first accused sold banana chips and it was sampled and on sending it to analyst it was found adulterated. Second accused is the firm, which is liable for the offence and hence complaint was laid against first and second [Crl.M.C. No.3210/2006] 2 accused. Subsequently, 3rd and 4th accused, who are petitioners, are also impleaded. 4. Learned counsel for petitioners submitted that petitioners have no liability and they cannot be prosecuted for the offence, since they are nominees as per Section 17(2) of the Act. It is also submitted that accused cannot be impleaded. The only provision available is Section 20A of the Act, as per which accused can be impleaded. But the said provision will not apply to the f acts of this case, it is submitted. Learned Public Prosecutor submitted that it is for the petitioner to prove that they had no knowledge etc. and the complaint cannot be quashed. 5. On hearing both sides and on going through the averments in the complaint, I find that sampling was done on 18.12.2000 and first accused was the vendor at that time. The sample was drawn from the firsts accused as the vendor which on analysis was found to be adulterated. Since the sample was drawn from a bakery, the said firm was also impleaded as the 2nd accused. As per the complaint, the vendor happens to be the nominee also under Section 17(2) of the Act. But the accused- vendor-cum-nominee expired. In such circumstances, partners of the firm are sought to be impleaded and they were impleaded [Crl.M.C. No.3210/2006] 3 and summons was issued to them also. 6. As per Section 17 of the Act, where an offence is committed by a company, the person if any who has been nominated under sub-section (2) to be in charge of the company for the conduct of business of the company or where no such person has been nominated other persons at the time offence was committed was in charge of and was responsible to the conduct of the business of the company and the company shall be deemed to be guilty of the offence and is liable to be proceeded against and shall be punished accordingly. 7. It appears from the allegations in the complaint that 2nd accused firm committed the offence. If that be the case, if any person is nominated by the company under sub-section (2) to be in charge of and responsible to the company for the conduct of the business of the company, such person will be liable for the offence and he can be proceeded against. Admittedly, first accused was proceeded against as nominee. As per the prosecution case, first accused is the nominee. If that be the case, the nominee alone will be responsible. 8. The liability of any other person or several persons who at the time the offence was committed was in charge of and [Crl.M.C. No.3210/2006] 4 responsible to the company for the conduct of the company arises, only if any person is nominated. In other words, partners of the firm can be proceeded for an offence committed by the company, only if there is no person nominated under Section 17(2) of the Act. 9. Even otherwise, there is nothing on record to show that accused 3 and 4, who are petitioners herein, are the persons who were in charge of and were responsible to the firm for the conduct of the business at the time when the offence was committed. It is not sufficient that two partners are proceeded against for the offence committed by a firm, but the prosecution has to establish or allege that they were in charge of and responsible for the affairs of the firm at the time when the offence was committed. 10. Either in the complaint or in Annexure-II, there is absolutely no allegation to bring accused nos.3 and 4 within the scope of Section 17(1)(a)(ii). Therefore, they cannot be proceeded against for offence allegedly committed by 2nd accused, which is the firm. The Court below committed an illegality in proceeding against petitioners for the offence allegedly committed by 2nd accused. Even if the offence is committed by 2nd accused firm, if there is a nominee, he alone will [Crl.M.C. No.3210/2006] 5 be liable to be prosecuted along with the company but it is only in cases where there is no nomination under Section 17(2) other persons who are in charge of and responsible to the firm can be proceeded against for offence committed by the firm along with the firm. 11. After filing of the complaint, no allegations are made in the complaint as to how and in what capacity petitioners were responsible for the offence committed. The allegations to attract the requirements in Section 17(1)(b)(2) are absolutely lacking in the complaint. In such circumstances, proceedings against petitioners are to be quashed and I do so. In the result, the following order is passed: Annexure-I, so far as it relates to petitioners are hereby quashed. Petition is allowed. K. HEMA, JUDGE. krs.