Criminal Miscellanious No.34249 OF 2006 (In the matter of an application under Section 482 of the Code of Criminal Procedure) M/S CARGILL INDIA PVT.LTD. 13 ABUL FAZAL ROAD, NEW DELHI-110001 THROUGH SRI AJITABH KUMAR DUBEY @ AJITABH DUBEY, SON OF SRI PARMANAND DUBEY, NOMINEE UNDER T HE PFA ACT, 1954 ---------------------------------------------------------------------------------------------------- PETITIONER VERSUS 1. THE STATE OF BIHAR. 2. THE CIVIL SURGEON-CUM-CHIEF MEDICAL OFFICER, PATNA. 3. SRI SHASHI BHUSHAN SINGH, FOOD INSPECTOR, PATNA. ------------------------------------------------------------------------------------------- OPPOSITE PARTIES For the petitioner :- Mr. Bibhuti Prasad Pandey, Senior Advocate Mr. Rohitabh Das, Advocate For the State :- Mr. Jharkhandi Upadhyay, A.P.P. P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. The petitioner is aggrieved by order dated 3.4.2006 by which cognizance has been taken for offences under Section 20 of the Prevention of Food Adulteration Act, 1954. The petitioner is a company which has filed this quashing application through their nominee Sri Ajitabh Kumar Dubey @ Ajitabh Dubey. 2. The prosecution report contained in Annexure-1 indicates that Soyabin Oil was seized from the alleged premises of Ms. Cargill India Private Limited, Jakariyapur New Bypass Road, Opposite Transport Nagar, Patna. Column 6 which relates to the witnesses at the time of 2 seizure is blank, whereas it is apparent from column 3 that the address of the accused has been mentioned at 18 Abdul Fazal Road, New Delhi and Cargill India Private Limited, Jakariyapur New Bypass Road, Opposite Transport Nagar, Patna. The order of sanction is at page 20 which indicates that sanction has been given for prosecution against Jitendra Kumar & others. Jitendra Kumar is the transporter of M/s Cargill India Private Limited who has his godown at Jakariyapur, New Bypass Road, Opposite Transport Nagar, P.O. & P.S. Kankarbagh, Patna-20. The others are not indicated in the order of sanction. Apparently the order of sanction does not indicate whether company’s officers i.e. M/s Cargill India Private Limited, have been considered for prosecution, as such the order of sanction is defective. This Court also notices that the norms of seizure have not be followed, inasmuch, there are no witness to the seizure. 3. Learned counsel for the petitioner submits that Section 17(2) of the Prevention of Food Adulteration Act, 1954 provides as follows: “17. Offences by companies.-(1) Where an offence under this Act has been committed by 3 a company- (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.” 4. The aforesaid provision clearly provides that the company should nominate a person in the area where it operates and such nomination should be accepted by the person so nominated and sent to the authorities i.e. the Health Department. Rule 12B of the Prevention of Food Adulteration Act, 1954 provides the manner in which information would be sent to the local health authorities. Rule 12B reads 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 4 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 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.” 5. Learned counsel for the petitioner has annexed Form VIII under Rule 12B which authorizes Mr. Ajitabh Kumar Dubey @ Ajitabh Dubey as the Area Sales Executive of Cargill India Private Limited. 6. It is apparent from the aforesaid facts that in fact there is a difference in the prosecution report, inasmuch, as it does not specify the brand which has been seized from the alleged godown which has been wrongly described as Cargill India Private Limited. It is also apparent that the Managing Director of Cargill India Private Limited has been made accused, whereas, there is no such post as Managing Director rather there is a Director in the said company. Besides which it was incumbent that the authorities concerned to have instituted a case against the nominated 5 person of the company posted in the area. It would appear that the seizure in fact was made from the premises of one Sri Jitendra Kumar and not from the authorized premises of M/s Cargill India Private Limited. The order of sanction is also defective inasmuch as there is no sanction given for proceeding against the Managing Director or any employee of M/s Cargill India Private Limited. This aspect of the matter has been considered and decided in the case of Consumer Action Group Vs. Cadbury India Limited & Anr. reported in (2000) 9 SCC 56. This case would also be covered by a decision in the case of R. Banerjee & Ors. Vs. H.D. Dubey & Ors. reported in (1992) 2 SCC 552 wherein the Supreme Court has held that the person nominated under sub-section (2) of section 17 should be proceeded against for any offence committed by the company. This court also comes to a conclusion that the sanction order is defective as far as it concerns the company as it is vague. 7. In the result, the order of cognizance dated 3.4.2006, passed in Complaint Case No. 60(M) of 2006, pending before the Sub- divisional Judicial Magistrate, Patna is hereby 6 quashed as far as it concerns Cargill India Private Limited. 7. This application is, thus, allowed. Patna High Court Dated, the 28th March, 2011 N.A.F.R./Sanjay ( Sheema Ali Khan, J.)