IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 24TH FEBRUARY 2010 / 5TH PHALGUNA 1931 Crl.MC.No. 1995 of 2007() ------------------------- CC.402/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TIRUR .................... PETITIONER(S): ACCUSED ----------------------- 1. MR. K.ANNE SHAHEER, (SALESMAN), S/O. MUHAMMED ASHRAF, KAINIKARA HOUSE, TIRUR. 2. MR. K.P.RAMLA, (LICENSEE), W/O. K.MUHAMMED ASHRAF, KAINIKARA HOUSE, TIRUR. 3. MR. E.R.ANTONY, PARTNER, M/S. KING'S LINE, PEACE BHAVAN, CHALLAPURAM, CALICUT-2. 4. MR. JOBY CHERAYATH, EX-PARTNER, M/S. KING'S LINE, 24/930, CHERAYATH HOUSE, KALOOR ROAD, MANKAVE, KOZHIKODE. 5. MR. BIJU CHERAYATH, EX-PARTNER, M/S. KING'S LINE, 24/930, CHERAYATH HOUSE, KALOOR ROAD, MANKAVE, KOZHIKODE. BY ADV. SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE ADV. RAJESH BATRA SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR RESPONDENT(S): STATE AND COMPLAINANT ------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. FOOD INSPECTOR, MOBILE VIGILANCE SQUAD, KOZHIKODE, THROUGH FOOD INSPECTOR, TIRUR MUNICIPALITY. PUBLIC PROSECUTOR SRI. B.JAYASURYA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER CRL.M.A.NO.3092 OF 2007 IN CRL.M.C.1995/2007 DISMISSED. ID/- K.HEMA, JUDGE. 24.2.2010 // TRUE COPY// P.S. TO JUDGE. K. HEMA, J. --------------------------------------------------- Crl.M.C. No. 1995 of 2007 --------------------------------------------------- Dated this 24th February, 2010. ORDER This petition is filed to quash Annexure A-complaint and all further proceedings initiated on the basis of the said complaint against petitioners. 2. Food Inspector (2ndrespondent herein) allegedly inspected the premises of a firm named in the complaint, on 14.1.2005 at about 5.30 p.m., and found that first accused (first petitioner) was conducting business therein. He purchased 3 boxes of Orbit Sugar free Chewing Gum (162 gms each), from first accused as per law, and samples were also drawn. First accused disclosed that 7th accused is the “supplier” of the said adulterated article. Enquiries were made about the persons involved in sale, manufacture etc., of the article purchased in this case. The sample, on analysis, was found to be adulterated. 3. Therefore, after complying with all legal formalities, a complaint was made against accused eight in number, alleging [Crl.M.C.No.1995/07] 2 that they committed offences under Section 16(i) a (i) r/w 2(ia) (a) and 2 ia(m) and 7(i) of the Prevention of Food Adulteration Act, 1954 ('the P.F.A. Act', for short) and Item No.A.25-02-01 of Appendix B of Prevention of Food Adulteration Rules 1955('the P.F.A. Rules', for short) 4. Petitioners are accused nos. 1, 2 and 4 to 6 respectively. They seek to quash Annexure A-complaint and all further proceedings initiated against them. Learned counsel for petitioners submitted that the complaint in respect of petitioners 1 and 2 is being withdrawn, with liberty to take up all the contentions before the trial court. This is allowed. 5. However, it was strongly contended that accused nos. 4 to 6 cannot be prosecuted on the strength of allegations in Annexure A-complaint. They are stated to be partners of 7th accused firm, which allegedly distributed adulterated article to first accused. If an offence under the Act is committed by a firm, the persons who are liable for the offence are governed by Section 17 of the Act and in the light of the said provision, there must be specific allegation in the complaint that partners were “in charge of and was responsible to the firm for [Crl.M.C.No.1995/07] 3 the conduct of the business of the firm”, it is argued. 6. It is pointed out that no allegations are made in the complaint in what manner accused nos. 4 to 6 are connected with accused no.7- firm and hence, accused 4 to 6 cannot be prosecuted for the alleged offence. Though section 17 refers to company, the same principle will apply to firm also, as held by the Supreme Court in Sham Sundar v. State of Haryana (1989 Crl.L.J. 2201), it is contended. Therefore, the submission is that in the absence of relevant allegation in the complaint, no vicarious liability can be attached to accused nos. 4 to 6 and they are not liable for the offence allegedly committed by 7th accused. 7. It is also submitted that there are decisions of the Supreme Court which would indicate that in the absence of relevant allegations in the complaint, a complaint can be quashed. Decisions in Municipal Corporation of Delhi v. Ram Kishan Rohtagi and others (1983 SCC (Cri) 115) and Banowarilal Tiberwala V. State of Assam and Another (1986 FAC 184) were cited in support of the argument. [Crl.M.C.No.1995/07] 4 8. Learned Public Prosecutor only argued that the complaint cannot be quashed on the grounds urged. On hearing both sides and on going through Annexure A- complaint, I find that accused nos. 4 to 6 are prosecuted because of their alleged vicarious liailty, as partners of the distributor-firm viz., 7th accused. The distribution of adulterated food by a firm is an offence under the Act. But, as per Section 17 of the Act read with Explanation (a), when an offence has been committed by a firm, the firm as well as the person who has been nominated under sub-section (2) of Section 17 will be liable for the offence. 9. Only if there is no nominee under section 17(2) of the Act, every person who, at the time when offence was committed, was in charge of, and was responsible to the firm for the conduct of the business of the firm shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. 10. It is pertinent to note that the complaint does not even reveal whether the Food Inspector made enquiry with 7th accused or the partners to find out whether there was any [Crl.M.C.No.1995/07] 5 nominee for the firm under Section 17(2) of the Act. Only if there is no nominee, as referred to in Section 17(2), that the partners can be proceeded against, as persons in charge of and responsible for conduct of the business of the firm at the time of commission of offence. A reading of Section 17(1)(a)(i) and (ii) will clearly show that partners of a distributor-firm can be proceeded against for the offence committed by firm, only if there is no nominee for the firm. 11. There is nothing in the complaint to show whether there was nominee for A7-firm as stated in section 17. There is nothing in the complaint to show that any one of the accused nos. 4 to 6 was either the nominee under Section 17(2) or they were in charge of, and was responsible to the firm for the conduct of the business of the firm, at the time when the offence was committed. In the absence of such allegations, even if 7th accused-firm has committed the alleged offences, accused nos. 4 to 6 cannot be held liable. Unless there are allegations in the complaint to disclose the liability of the partners for the offence committed by the firm, as per in Section 17, the partners cannot be proceeded against for the [Crl.M.C.No.1995/07] 6 act committed by the firm and punished under the provisions of the Act. 12. It appears from the allegations made in the complaint that 7th accused-firm is arrayed as an accused, as the “supplier” of the adulterated food article involved in this case. Accused nos. 4 to 6 are arrayed as accused only because they are the alleged partners of accused no.7-firm, as allegedly revealed by the sales tax authorities. It is not sufficient to mention that on enquiry with the sales tax authorities, it is found that certain accused are the partners of the firm. 13. The question is whether the persons who are alleged to be partners of the 7th accused-firm were partners at the time of commission of offence by the said firm. Even if they are the partners, they cannot be prosecuted unless they were responsible to the functioning of the firm at the time of commission of offence. But, such crucial allegation is absent in the compliant. At least, the bare minimum allegations must be present in complaint to attach criminal liability on the accused. But, complaint is totally bereft of the details which [Crl.M.C.No.1995/07] 7 are necessary to prosecute accused nos. 4 to 6, for the offence allegedly committed by accused no. 7-firm. 15. It is relevant to note at this juncture that on a close reading of Annexure C, even first accused does not seem to have any contention that the article involved in this case was distributed by 7th accused. He only produced an invoice, evidencing an earlier purchase of chewing gum on 3.7.2004 ie., more than 7 months prior to the date of sampling in this case. Thus, there is no ground to proceed against accused nos. 4 to 6 for the offence under the Act. The continuation of proceedings against accused nos. 4 to 6 on the basis of Annexure A-complaint will only amount to abuse of process of court and hence, I am satisfied that further proceedings against accused 4 to 6 have to be quashed. Hence, the following order is passed: 1. This petition in respect of accused 1 and 2 is dismissed, as withdrawn. [Crl.M.C.No.1995/07] 8 2. Annexure A-complaint, so far as it relates to a accused nos. 4 to 6, is hereby quashed. 3. Accused no. 4 to 6 shall not be proceeded against, any further, on the basis of Annexure A- complaint. Petition is disposed of accordingly. K. HEMA, JUDGE. krs.