(1) CRI. WP. 194.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 194 OF 2010 1. Rasiklal S/o Manikchand Dhariwal, Age : 67 years, Occu.: Business, Director of Dhariwal Tobacco Products Ltd., Gut no. 1297/1298, Borade Malla, Shirur, Dist.: Pune 2. Prakash S/o Rasiklal Dhariwal, Age : 37 years, Occu.: Business, Director of Dhariwal Tobacco Products Ltd., Gut no. 1298/1298, Borade Malla, Shirur, District : Pune .. Petitioners (Original Accused) VERSUS 1. The State of Maharashtra, (Copy to be served on Public Prosecutor, High Court of Judicature of Bombay, Bench at Aurangabad) 2. Madhukar S/o Shivram Patil, Food Inspector, Food and Drugs Administration, Beed .. Respondents ... Mr. D.S. Bharuka, Advocate for the Petitioners Mr. B.J. Sonawane, APP for the respondent-State None present for the respondent no.2 though served ... CORAM : V.R. KINGAONKAR, J. DATED : 22ND OCTOBER, 2010 ORAL JUDGMENT:- 1. By this Petition, the petitioners seek discharge in the proceedings of Criminal case bearing (2) CRI. WP. 194.2010 R.C.C. no. 55 of 1998 instituted on a complaint filed by the Food Inspector for the offences under section 7(1)2(ia), 7(V) r/w. section 62 and Rules under the Prevention of Food Adulteration Act, made punishable under section 16 and 17 of the said Act. 2. It is not necessary to elaborately set out the pleadings of the petitioners. It suffices to mention here that they are running business of the Company called as "Dhariwal Tobacco Products Ltd." They allege that the manufacturing and produce of the company was being looked after by Shri R.P. Dayma as the Manager of the Company since 1.8.1990. They further allege that one Shri Amarsingh was appointed as nominee of the Company since 9.7.1992 and such appointment was duly accepted by the Joint Commissioner of Food and Drugs Administration, Pune. The said Shri Amarsingh left service on 1.1.1995 and thereafter, Shri R.P. Dayma was appointed as Production Supervisor and was nominated by the Company. The nominee was therefore responsible for the acts of the Company and particularly in relation to the products. The provisions of Section 17(1)(a) (3) CRI. WP. 194.2010 of the Prevention of Food Adulteration Act, 1954 would be attracted in such a case and therefore, the petitioners could not prosecuted by the Food Inspector. 3. The tenor of the criminal proceedings initiated by the Food Inspector vide the complaint Application no. 55 of 1998 purports to show that on 20.8.1997, he collected the samples of "Manikchand Gutkha" which is product of M/s. Dhariwal Tobacco Products Ltd., from a pan shop situated at Ambajogai. The pouches were duly sealed and sent for the analysis. The report of the Public Analyst disclose that the sample contain magnesium fluoride which contaminated the quality of the product as a food article. Secondly, the complaint proceedings were initiated after obtaining required consent of the Joint Director of the Food and Drugs Department. Sofar as the petitioners are concerned, it has been alleged that they are the owners and producers of the food article i.e. "Manikchand Gutkha" and as such are vicariously liable. (4) CRI. WP. 194.2010 4. The learned Advocate appearing for the petitioners would submit that in view of nomination of Shri R.P. Dayma, Manager of the Company, the petitioners cannot be proceeded with. He would further submit that the petitioners are not shown to be the persons incharge of the business at the relevant time and that there is no particular averment in the complaint to implicate them as the persons concerned with the production of the item called "Manikchand Gutkha". He contended that the relevant rule 12(B) of the Prevention of Food Adulteration Rules is duly followed. His further contention is that though the nominee was acknowledged by the Local Health Authority on 25.8.1997 yet the actual nomination was sent on 11.7.1997 and, therefore, the prosecution could be proceeded only against the nominee and not against the present petitioners. He argued further that the offence could not said to have been occurred prior to the report of the Public Analyst and, therefore, when the acknowledgment of the nomination by the Local Health Authority is prior in time of such report, it could be regarded as valid one. (5) CRI. WP. 194.2010 5. The learned APP has brought to my notice judgment delivered by Single Bench (Hon'ble Mr Justice A.B. Chaudhari) in Criminal Application no. 1827 of 2007 of which copy is placed on record. In rather identical fact situation, the Single Bench of this Court held that the quashing of the complaint on the ground of existence of nomination is impermissible at the peremptory stage. It is observed : "8. It can be thus seen that the claim of the applicants for quashing the complaint on the ground of existence of nomination is very very seriously disputed by the other side and therefore, it is clearly a matter of proof, which can be tendered in a full dressed trial before the Magistrate and it will be premature to draw any inference at this stage in favour of the applicants. That apart, the sample was taken on 28.7.1997 and the nomination appears to have been submitted and accepted by the concerned authority on 25.8.1997 i.e. about a month after the offence in question was committed. The attempt of the applicants to show that there was a nomination on 11.7.1997 and this Court should therefore (6) CRI. WP. 194.2010 accept the said document as a gospel truth is wholly unfair and misleading the Court since the same is accepted only on 25.8.1997. It is on the basis of such false statement this application was admitted and the proceedings were stayed. The provisions of section 17 of the Prevention of Food Adulteration Act regarding offences by Companies. various decisions thereon and various decisions thereon cited by learned Counsel for the applicants have been carefully seen by me. But in the light of the facts stated hereinbefore about serious disputed questions regarding nominations etc. even whether the applicants were incharge of the Company etc. are the matters to be seen in the evidence which can very well be brought by the complainant and his witnesses. To jump to any conclusion at this stage would be doing injustice to the prosecution. Applicant nos.1 and 2 are admittedly the owners or the Directors or Managing Directors, Chairman of the Company and to accept their case that they have no concern with the day-to-day affairs of the Company in the matter of manufacturing of Gutkha Pan Masala would be nothing but ridiculous. At any rate there are clear averments which I have quoted above regarding applicants (7) CRI. WP. 194.2010 having committed offence as regards manufacturing for sale, distributing for sale, stocking for sale and selling of food article 'Manikchand Gutkha' etc. As earlier pointed out it is the case of the applicants that they themselves manufactured Gutkha. Whether or not sample which was collected by the Food Inspector was manufactured by them is clearly made out from the complaint. The dispute raised by the applicants that the said product is not manufactured by them cannot be appreciated or accepted at this premature stage and they are entitled to prove their defence in the trial before the Magistrate to the effect that the sample in question was never manufactured by them. The submission that the supplier had made a false statement that the sample was sold by accused No.1 and therefore, at this stage this Court should believe it to be gospel truth, is wholly misconceived. It is for the prosecution to prove its case before the trial Magistrate and even if the supplier has made a false statement that cannot be the end of the matter." 6. Mr. Bharuka, learned Advocate for the petitioners, seeks consideration of the (8) CRI. WP. 194.2010 distinguishing features on the ground that the commission of the offence is to be taken as on the date of the report of Public Analyst and not on the date of the collection of the sample. He would submit that learned Single Judge of this Court did not address this issue regarding the validity of the nomination as on the date of the receipt of the report of the Public Analyst. He also invited my attention to the judgment in "State of Rajasthan Vs. Sanjay Kumar and ors." 1998 All India Prevention of Food Adulteration Journal 333. That was a case under Drugs and Cosmetics Act, 1940. What the Supreme Court held in the given case is that the limitation for taking cognizance was to commence from date of report of Public Analyst and not from the date of taking sample because the quality of the drugs could be determined only on basis of such report. The question whether the offence is said to have occurred on the date of collection of the food articles, or it could be as on the date of receipt of the report of Public Analyst is, however, not of much relevance in the present case. For, there is no question of prosecuting the accused if the report of the Public (9) CRI. WP. 194.2010 Analyst is negative. Nor such revelation made about presence of contaminated or extraneous substance in the sample, reported subsequently, would change the date of offence. The authority rendered by the Apex Court deals with the computation of the limitation period. The learned counsel would further submit that the Apex Court in "Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and others" 1982(II) Prevention of Food Adulteration Cases 355 duly considered the question of vicarious liability. He also referred to "R. Banerjee and others Vs. H.D. Dubey and others" 1992(1) Prevention of Food Adulteration Cases 128. 7. Considering the judgment rendered by the learned Single Judge in the identical fact situation, I find it difficult to deviate from the view taken by the learned Single Judge. Mr. Bharuka submits that the judgment of the learned Single Judge is challenged by the petitioners before the Supreme Court by filing Special Leave Petition no. 3827 of 2010. Needless to say the question regarding the immunity claimed by the petitioners is not yet (10) CRI. WP. 194.2010 crystallized. Therefore, at such peremptory stage the present Petition cannot be entertained. 8. In the result, the Petition is dismissed with a liberty to challenge the prosecution at subsequent stage during the course of trial if the petitioners would be able to demonstrate that they were totally unconcerned with the production or that the nomination was effected prior to the commission of the offence or if the question is determined in their favour in the above referred Special Leave Petition. Sd/- [V. R. KINGAONKAR, J.] arp