IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY EIGHTH DAY OF AUGUST TWO THOUSAND AND NINE HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Petition Nos.5928 of 2008; 6331 of 2008; 2945 of 2009; 2952 of 2009 and 3741 of 2009 Crl.P. No.5928 of 2008: Between: C.S. Khosla, Regional Sales Manager (Foods South) & Nominee of M/s. Hindustan Lever Limited, 165/166, Backbay Reclamation, Mumbai and another .. Petitioners AND The State of Andhra Pradesh represented by Food Inspector, Division-III, O/o. the Asst. Food Controller, Zone-IV, Kadapa represented By the Public Prosecutor, High Court, Hyderabad .. Respondent Petition under Section 482 of Cr.P.C. praying that in the circumstances stated in the grounds filed therewith, the High Court will be pleased to quash C.C. No.31 of 2008 pending on the file of the Judicial Magistrate of First Class, Badvel, Kadapa District. Crl.P. No.6331 of 2008: Between: Deejit Rudra and another .. Petitioners AND The State of Andhra Pradesh represented By A. Rajendarnath, Food Inspector, Division-III, Adilabad District, represented by the Public Prosecutor, High Court, Hyderabad .. Respondent Petition under Section 482 of Cr.P.C. praying that in the circumstances stated in the grounds filed therewith, the High Court will be pleased to quash C.C. No.95 of 2008 pending on the file of the Judicial Magistrate of First Class, Asifabad, Adilabad District. Crl.P. No.2945 of 2009: Between: Nitin Paranjpe and others .. Petitioners AND The State, represented by Food Inspector, Krishna District, Machilipatnam represented by the Public Prosecutor, High Court, Hyderabad .. Respondent Petition under Section 482 of Cr.P.C. praying that in the circumstances stated in the grounds filed therewith, the High Court will be pleased to quash C.C. No.338 of 2009 on the file of the Frist Metropolitan Magistrate, Vijayawada, Krishna District as against the petitioners/A.2, A.4 and A.5. Crl.P. No.2952 of 2009: Between: P. Ram Narayan and another .. Petitioners AND The State, represented by Food Inspector, Division III, Krishna District, Machilipatnam, Represented by the Public Prosecutor, High Court, Hyderabad .. Respondent Petition under Section 482 of Cr.P.C. praying that in the circumstances stated in the grounds filed therewith, the High Court will be pleased to quash C.C. No.2304 of 2008 on the file of the Judicial Magistrate of First Class, Nandigama, Krishna District as against the petitioners/accused 2 and 3. Crl.P. No.3741 of 2009: Between: P. Ram Narayan and another .. Petitioners AND The State, represented by Food Inspector, Division II, Guntur District, O/o. Assistant Food Controller, Zone III, 5th Line, Annapurna Nagar, Gorantla, Guntur through the Public Prosecutor, High Court, Hyderabad .. Respondent Petition under Section 482 of Cr.P.C. praying that in the circumstances stated in the grounds filed therewith, the High Court will be pleased to quash C.C. No.18 of 2009 on the file of II Additional Munsif Magistrate Court, Sattenapalli, Guntur District as against the petitioners/A.2 and A.3. These petitions coming on for hearing, upon perusing the petition and the grounds filed in support thereof and upon hearing the arguments of Sri E. Manohar, learned senior counsel for the petitioners and of the Public Prosecutor for the respondents in all the cases, the Court made the following: COMMON ORDER: Heard Sri E. Manohar, learned senior counsel for the petitioners and Sri A. Ramesh, learned counsel representing the learned Public Prosecutor for the respondents in all the cases. As all the five cases raise common questions, they are being disposed of by this common order. The petitioners in all the cases are facing prosecution under the Prevention of Food Adulteration Act, 1954 (for short “the Act”) in respect of Kissan Fruity Jam, the samples of which were lifted by the respective Food Inspectors from the premises of the vendors and sent for analysis to Public Analyst. The label declaration showed the product to have been manufactured by Hindustan Lever Limited, one of the petitioners herein. The Public Analyst in different reports opined the samples to be adulterated. After obtaining written consent of the Food Health Authority, the respective complaints were filed. The petitioners assail the proceedings mainly on the ground of prosecutions proceeding solely on the basis of label declarations. They also contend that the persons implicated as the nominees of the company respectively were not the nominees during the relevant period, due to which the prosecutions are, in any view, untenable against them. The petitioners also rely upon the delay in launching the prosecution till after the expiry of the shelf life of the product, depriving them of the statutory right under Section 13(2) of the Act. The facts are not seriously in dispute and a Division Bench of this Court in Criminal Petition No.2714 of 2003 answered a reference on 31-12-2007 holding that unless the Food Inspector has picked up the sample for analysis, right from the place where it is manufactured itself, he has to necessarily prosecute the manufacturer or dealer or distributor or agent only upon prima facie establishing their link to the alleged adulterated food article which has been sold or offered for sale. It was further held that the manufacturer or distributor or dealer cannot be straight away prosecuted at the initial stage itself on the strength and basis of the information gathered in terms of Section 14A of the Act. The Division Bench, however, reserved the power of the Magistrate under Section 20A of the Act to exercise the same based upon the evaluation of the evidence gathered during the trial, but before the same is concluded. In Criminal Petition No.7448 of 2007 decided on 31-01-2008, the learned Judge was deciding an identical application as the present one and upheld the contentions of the petitioners on both the counts referred to above. The same learned Judge decided other cases, copies of which are enclosed to Criminal Petition No.5928 of 2008, replicating which may not be necessary. The petitioners also referred to R. Banerjee and others v. H.D. Dubey and others[1], wherein the Apex Court laid down that prosecution of the Directors of the company under the Act, instead of the nominee, in the absence of any allegation that the offence was committed with the consent or connivance of or due to the negligence of the Directors other than the nominated person, is unsustainable. In Criminal Petition No.2945 of 2009, the 1st petitioner was prosecuted as the Branch Manager of the agent of Hindustan Lever Limited, whereas, in fact, he is the Chief Executive Officer and Managing Director of Hindustan Lever Limited since 01-06- 2007, proof of which has been also submitted as per the list of the Directors certified by the Company Secretary of the company. As he is not the Branch Manager of the alleged agent of the company and as he is not the nominee of the company to face the relevant prosecutions, the prosecution against him also should fail as contended by the petitioners. In the light of the binding precedents referred to above, it is, thus, clear that the prosecution of the Chief Executive Officer and Managing Director of the company in one of the cases, is untenable. Similarly, the prosecution of the persons, who are not nominees on the relevant dates, is also untenable and the prosecution of the company solely on the basis of the information on label declarations, is also unsustainable, of course, subject to the power of the Magistrate under Section 20A of the Act. As the criminal proceedings have to be quashed in respect of the petitioners on these grounds, it will be superfluous to deal with the other contentions raised, any expression of opinion on which, will prejudice the continuance of the prosecution against the other accused and also prejudice the exercise of the power by the Magistrate under Section 20A, if required. Therefore, without expressing any opinion on those aspects, the petitions have to be allowed. Therefore, all the criminal petitions are allowed and the further proceedings in C.C. No.31 of 2008 on the file of the Judicial Magistrate of First Class, Badvel, Kadapa District; in C.C. No.95 of 2008 on the file of the Judicial Magistrate of First Class, Asifabad, Adilabad District; in C.C. No.338 of 2009 on the file of the First Metropolitan Magistrate, Vijayawada, Krishna District; in C.C. No.2304 of 2008 on the file of the Judicial Magistrate of First Class, Nandigama, Krishna District; and in C.C. No.18 of 2009 on the file of the II Additional Judicial Magistrate of First Class, Sattenapalli, Guntur District, against the petitioners are quashed subject to the power of the Magistrate exercisable under Section 20A of the Prevention of Food Adulteration Act, 1954 based upon the evaluation of the evidence gathered during the trial, but before the same is concluded in respect of M/s. Hindustan Lever Limited and M/s. Hindustan Unilever Limited. _____________________ G. BHAVANI PRASAD, J Date: 28-08-2009 Svv [1] AIR 1992 SUPREME COURT 1168