________________________________________________________________ Whether the reporters of the local newspapers are allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 108 of 2008 Reserved on : 18.12.2008 Date of Decision: January 7th ,2009 _______________________________________________________ Raj Kumar Petitioner. Versus Food Inspector Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? . Yes. For the Petitioner : Mr. Atul Jhingan, Advocate. For the respondent. Mr. J.S.Guleria, Law Officer. Surinder Singh, J. This is a petition under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure seeking quashing of the proceedings against the petitioner pending in the Court of Judicial Magistrate, Court No.2. Shimla under Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954, ‘Food Act’ for short. The petitioner is the licensee of the Hotel Eve, The Mall, Shimla. The said premises are used for the lodging and catering. Kamal Kumar, the real brother of the petitioner, was the Manager and conducting the business of the said Hotel. Succinctly stated the facts of the case are that on 28-12- 2005, at about 12.15 P.M, Food Inspector inspected the premises of the aforesaid Hotel The Eve, The Mall, Shimla and found Kamal Kumar conducting the business as a Manager. At that time, he was having 4 x 250 grams poly packs of Amritsari Papar on a shelf kept for sale to the general public. After disclosing his identity, the - 2 - Food Inspector declared his intention to take its sample for analysis. Thus, he purchased 3 x 250 gram poly packs of Amritsari Papar by making a payment of rupees 67.50 paise. The purchased packs of the Papars aforesaid were separately labeled, wrapped and sealed in accordance with law and the rules applicable thereto. The whole sampling process was witnessed by Sham Singh and Charan Dass. Memo was also prepared which was signed by Kamal Kumar and the witnesses aforesaid in the presence of the Food Inspector. One part of the sample was sent to the Public Analyst Kandaghat for its examination. As per the report, Batch Number, names of the ingredients used in the product, month and year in which the product was manufactured or packed and month and year up to which the product was best for consumption was not mentioned on the label. Hence the sample of Papar was found to be mis-branded. After completing all the formalities under the Act, the matter was submitted for the sanction/written consent of the competent authority which was accorded on 29.3.2006. The Food Inspector aforesaid was authorized to launch the prosecution against Kamal Kumar and also ‘M/s Hotel Eve’ through its nominee/partners, in the court of law. As such, the complaint was filed on 26.5.2006 against them. The respondents were summoned. Accused Kamal Kumar put in appearance before the learned trial Court and filed an affidavit on 24.10.2006 that the petitioner Raj Kumar was residing abroad and he (Kamal Kumar) being the manager of the hotel was responsible for the day-to-day business of the hotel. The learned trial Court adjourned the matter for the - 3 - presence of respondent No.2. The name and other particulars of respondent No.2 were ordered to be supplied. When the matter was pending for the service of respondent No.2, Kamal Kumar accused died on 23.6.2008. The proceedings against him were dropped. The bailable warrants were issued against the respondent No.2 on filing correct particulars of the petitioner herein. The petitioner has assailed in this petition his impleadment as an accused in the above proceedings pending before the learned trial Court being unjustified and liable to be quashed and set-aside as he had played no role in the offence committed. Shri Atul Jhingan, learned counsel for the petitioner has vehemently argued that in view of the affidavit filed by Kamal Kumar, the petitioner ought not to have been summoned as it was only Kamal Kumar who was Incharge of the business. He next contended that in any case, there is no allegation against the petitioner in the complaint that the offence was committed with his consent or connivance or was attributable to, any neglect on his part. Contra, Shri J.S. Guleria, learned law officer for the State while placing reliance on the judgment titled: Rajesh Jain and another –v- State of H.P. Criminal revision No.60 of 2008, argued that the case against the petitioner falls under sub-section (4) of Section 17 of the Act and the affidavit filed before the learned trial Court by Kamal Kumar cannot be taken as a nomination as per the provisions of sub-section (2) of Section 17 of the Act. I have considered the rival contentions of the parties and have carefully examined the record of the case. - 4 - At the very out set I would like to say that in Rajesh Jain’s case supra, had different background and the questions involved, this Court has not dealt with the question which has cropped up in this petition. Therefore, its ratio decidendi is not applicable in the instant case. Now I proceed to determine the contentions raised therein. The first contention of the petitioner is worth rejecting for the reason that the affidavit of Kamal Kumar cannot be treated as nomination as per the provisions of sub-section (2) of Section 17 of the Act. The legal position can be explained thus. Section 17 (1) of the Act is a deeming provision which provides that where an offence under the Act is committed by a Company/Firm, the person Incharge and responsible to it, is held to be guilty, and to be liable should be proceeded against with a view to fix culpability, where offence is committed by a company. Sub- section (2) provides for a nomination so that there is no difficulty in fixing responsibility. Where, however, no person has been nominated, liability is extended to any person who was in-charge of or responsible to the company/firm in the conduct of its business. The prosecution is to find out whether any person has been nominated in terms of Section 17 (2) of the Act and if a person has been nominated, to proceed against him so that he can be punished if the Company is found guilty. There has to be a determination that a company/firm is guilty, where after the question of punishing the person of any of the categories indicated in clause (a) of sub-section (1) arises. However, reverse is not necessary to be established. The section does not require that - 5 - the person in-charge of the company should be found guilty before the company is held liable. Merely because a person is not nominated, the liability does not vanish and along with the company the person who was in-charge of or responsible to the company in the conduct of the business is rendered liable. Sub- section (1) of Section 17 of the Food Act makes all the persons in- charge of or responsible to the company in the conduct of business liable to the company in the conduct of the business liable to the procedure and process in case there is no indication in terms of sub-section (2). Where a person is nominated, that person is made liable in terms of clause (a) of sub-section (1) of Section 17 of the Act. However, the scope is wider where there is no nomination and the person who is in-charge of or responsible to the company in the conduct of business is liable subject of course to the proviso which casts onus on the person who claims that the offence was committed without his knowledge and he exercised all due diligence to prevent the commission of such offence. In the instant case, the affidavit filed by Kamal Kumar is of no consequence and it does not fall within the parameters of Section 17 (2) of the Act. Therefore, Kamal Kumar could not be termed as the nominee of the said firm. Since Kamal Kumar has died, therefore, proceedings against him were rightly terminated. To answer contention No. 2 raised by the learned counsel for the petitioner, it is pertinent to note the allegations made against him in the complaint. Last line of Para 8 of the complaint filed by the Food Inspector contains the allegations against him. - 6 - However, for the sake of brevity, para 8 of the complaint is reproduced here-under :- “8. That accused Sh. Kamal Kumar Verma s/o late Sh. Hans Rah Verma, Manager of M/s Hotel Eve, The Mall, Shimla was having misbranded Amritsari Papar packs under section 2 (ix) (k) in his possession meant for sale to general public and sold the same to me and thereby committed an offence punishable under section 16 (1) (a) (i) of OP.F.A Act 18=954 read with section 7 of the Act. M/s Hotel Eve, The Mall Shimla through its Nominee/Partners is also liable under the Act”. As already stated above, in case of an offence against the company which term includes a firm, it is the nominee as visualized by sub-section (2) of Section 17 of the Act who has to be proceeded initially. However, if it is prima facie proved that the offence had been committed with the consent etc of some other person other than the nominee, he can also be proceeded against as laid down under sub- section (4) of Section 17 of the Act. Precisely, perusal of Section 17 of the Act shows that the Legislature has an intention to proceed against the person responsible at the first instance and only if it is proved that the offence has been committed with the consent etc. of any Director and/or others named under sub-section (4), it is thereafter open to the court to proceed against him/them. The intention behind the amendment Act, 1976 which has - 7 - given the present shape to this section, as it stands now is apparent and is plainly discernable from its scheme that it is not open to the Court to work against it on any ground more specifically when it is not averred in the complaint that such a person was Manager, Secretary or other officer of the company/firm not being a person nominated under sub- section (2) of the Act, consented to or connived to commit the offence under the Act or is attributable to him/them on account of any neglect on his/their part. Thus, as noted above, there is no allegation of the above nature in the complaint against the petitioner to array him as an accused in this case. Therefore, summoning him in the case without any such allegation or in absence of any prima facie of such proof is wrong and illegal. The petition is, therefore, allowed and the proceedings against the petitioner are hereby quashed. However, it would be open to the trial court to implead any other person or such other partner(s) of the firm as an accused qua whom the consent, connivance or neglect would be proved within the indictment of sub-section (4) of Section 17 of the Act ibid. The petition is accordingly disposed of. (Surinder Singh) Judge. January 7th , 2009. (bm)