IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 10TH DECEMBER 2009 / 19TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 786 of 2009() ----------------------------- AGAINST THE ORDER DATED 15/10/2008 IN CMP 385/2008 IN CC.331/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA .................... REVN. PETITIONER: ---------------------------- D. RAMAMORTHY, MANAGING DIRECTOR, S.S.D OIL MILLS COMPANY LIMITED, 132, VILLAGE ROAD, IYYAPPANTHANGAL, CHENNAI - 56. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON RESPONDENT(S): ------------------------ 1. FOOD INSPECTOR, THALASSERY CIRCLE, THALASSERY - 670 101. 2. STATE OF KERALA, REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI.JAYAKRISHNAN. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. = = = = = = = = = = = = Crl.R.P.No.786 of 2009. = = = = = = = = = = = = Dated this the 10th day of December, 2009. O R D E R The first respondent, Food Inspector, Thalassery, on 19.2.2003 took sample of vanaspati from shop bearing No.12/317 at Mambram in Vengad Grama Panchayat run by one Abdul Khader. When sent for analysis it was reported that the sample did not confirm to the standard prescribed by the rules framed under the Prevention of Food Adulteration Act (hereinafter referred to as the 'Act') and hence it was adulterated. The prosecution was launched against the vendor as well as the distributor. It was revealed that the sample purchased by the first respondent was manufactured by SSD Oil Mills Company Ltd. The request of the first respondent to the said company to intimate the details regarding nominee under Section 17(2) of the Act was not heeded by the company authorities. Therefore, the first respondent got impleaded the Managing Director, who is the revision petitioner before this Court as Crl.R.P.No.786 of 2009. -: 2 :- the third accused. 2. The revision petitioner filed a petition as CMP.No.385/2008 purporting to be made under Sec.227/245 of the Code of Criminal Procedure seeking an order of discharge. It is with a plea that the company had appointed a nominee under Sec.17(2)of the Act and that the nominee shall be impleaded as the third accused after discharging the revision petitioner. A photocopy of the Form No.VIII alleging to be as prescribed by the Rules under Act was also appended along with that petition. By the impugned order dated 15.10.2008 the learned Magistrate dismissed the petition. Assailing the legality, correctness and propriety of that order, this revision petitioner was filed. 3. The learned Magistrate had given two reasons for dismissing the petition. The first reason stated is that the nomination form does not reveal the full address of the nominee and the area of his jurisdiction etc. The other reason is that though the petitioner was given an earlier Crl.R.P.No.786 of 2009. -: 3 :- opportunity, he had not availed that opportunity till he was impleaded under Sec.20A of the Act. 4. Going through the copy of the form VIII, which is produced as Annexure-B, it is seen that a Depot in charge of the Company was nominated under Sec.17(2) of the Act. For correct appraisal, a reading of Section 17(2) of the Act would be appropriate. It reads as follows:- “Sec.17(2). Any company may, by order in writing, authorise 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 subsection in relation to different establishments or branches or units and the persons 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.” Crl.R.P.No.786 of 2009. -: 4 :- 5. Sec.17(2) mandates that the nominee shall be either a Director or Manager of the company. So the person nominated should be either a Director as defined under Sec.2(13) of the Companies Act or a Manager as defined under Sec.20(4) of the Companies Act. There is no mention in Annexure-B form furnished that the Depot in Charge mentioned therein is either a Director or a Manager of the Company. The learned counsel for the revision petitioner submitted that he being a person in charge of the Depot, he may be a Manager having superintendence, control and direction of the Board of Directors and was in management of substantially all of the affairs of the Company. To come to such a conclusion, one has to read in between the lines, which I am unable to. Annexure-B didn't mention that the nominee is in superintendence or management of the affairs of the company. Going by Sec.17 (2), I find that such contentions deserves no consideration. Because Sec.17(2) permits only directors or managers who are employed mainly managerial or supervisory capacity. Crl.R.P.No.786 of 2009. -: 5 :- Since the Companies Act specifically defines Director and Manager, nomination of any other employee, who would not come within the definition of Director or Manager, irrespective of their duty or responsibility is legally not valid. In such event the Managing Director cannot avoid prosecution. 6. The learned counsel for the revision petitioner submitted that the nomination so made was accepted by the local authority as provided by Rule 12B. The mere fact that the local authority had either not noted the defect in the nomination or that it was accepted does not make the nomination proper and valid, in case the person nominated is not the person mentioned under Sec.17(2) Act. In the above circumstance, I find that the court below was not at all erred in dismissing the petition to discharge the revision petitioner. 7. Annexure-B would show that the address of the nominee shown as “Depot in charge of the company”. It didn't contain the official postal address. Neither it Crl.R.P.No.786 of 2009. -: 6 :- contains the permanent address. So the finding of the lower court that the nomination produced didn't contain the address of the nominee is absolutely correct. As found by the lower court, Annexure-B also didn't mention the area of jurisdiction. In that way also it is defective. Therefore, that reason also requires no interference. In effect, Annexure-B is not a proper nomination as contemplated under Sec.17(2) of the Act. The first respondent is justified in arraying the revision petitioner as the third accused. In the absence of valid and proper nomination, the Managing Director is liable to be prosecuted. The lower court was correct in dismissing the petition for discharge. In the result, this revision petition is devoid of any merit. Accordingly it is dismissed. P.S.GOPINATHAN, JUDGE. Kvs/-