SB CRIMINAL MISC. PETITION NO.505/2002. Ramesh Chandra Jain & Anr. Vs. The State of Raj& Anr. Date of order:- 1st February, 2008 HON'BLE MR. JUSTICE RAGHUVENDRA S.RATHORE. Mr. Rajesh Kapoor, for the petitioners. Mr. H.V.Nandwana, Public Prosecutor. This Criminal Misc. Petition under Section 482 Cr.P.C. has been filed against the order dated 31.7.2001 passed by the learned ACJM Kishangarh, District, Ajmer, whereby he has framed charge against the petitioners for the offence under Section 7/16 of the Prevention of Food Adulteration Act,1954 as well as the order dated 18/2/02 passed by the Additional Sessions Judge, Kishangarh, District Ajmer in the revision petition confirming the aforesaid order passed by the learned Magistrate. 2. Broadly speaking, the facts of the case are that Ajmer Bottling Private Ltd. Parabatpura, Ajmer is a Private Ltd. Company, which had been registered under the Indian Companies Act. The said Company was producing areated water and cold drinks. The petitioners and Shri E.N. Contractor were the promoters of the aforesaid Company. The article of Association and the memorandum of association of the Company also mentioned the present petitioners as its promoters. 3. The non-petitioner No.2, the Food Inspector, posted at Head Quarter, Beawer, on having doubt about the purity of the product, purchased nine bottles of Zef Orrange on 30.4.1987 at Buss Stand, Roopangarh for an amount of Rs.36/-. The said product was sent for examination to the Public Analyst at Ajmer and on having found the same to be adulterated, charge- sheet under section 7/16 of the said Act was filed against the petitioners, Shri E.N. Contractor, Mahaveer Agency, Shri Kailash Chand, the proprietor of Mahaveer Agency, Ajmer and also against the Ajmer Bottling Private Limited, Ajmer. 4. It is to be noted that before filing of the challan in the instant case, the Chief Medical and Health Officer, Ajmer vide his letter dated 5.8.1987 had inquired from the Commercial Taxes Officer, Ajmer, with regard to list of owners/partners of M/s. Ajmer Bottling Company, Pvt. Ltd. Parabatpura, Ajmer. In response to the said letter, the Commercial Taxes Officer, Ajmer, vide his letter dated 18.8.1987 informed about the Company which was registered in that office on 17.7.1985. In accordance with the memorandum of association and article of the association of the company, the petitioners and E.N. Contractor has been noted as promoters. 5. The learned Magistrate then called the Food Inspector to give statement and after recording the examination-in-chief, reserved his cross-examination. It was on the basis of the said statement of the Food Inspector that the arguments in respect of the charge were heard by the learned trial Court and by its order dated 31.7.2001, the learned trial Court had framed the charges against the petitioners, two other accused persons of the Company and against one Kailash Chand for the offence under Section 7/16 of the Food Adulteration Act. Thereafter, the said order was challenged by the accused petitioners before the revisional Court but without any success, as same was dismissed by the learned Additional Sessions Judge, Kishangarh, District Ajmer on 18.2.2002. 6. Learned counsel for the petitioners has submitted that while granting sanction for filing the challan under Section 20 of the Act of 1954 , the CM&HO had not looked into the documents filed along with the challan revealing that the accused petitioners had no concern with either manufacturing or for conducting the business of the company. Therefore, he has submitted that the sanction for filing of challan had been given without judicious application of mind. He has also submitted that though the petitioners have been held to be the promoters of the Company even then the charge has been framed against them by holding some of them to be promoters and some partners. The learned counsel for the petitioner has again submitted that according to Section 62 (6) of the Indian Companies Act, the promoters cannot be held responsible for the work of the Company particularly, when neither under Section 17 of the Act, they have been nominated nor they can be held responsible for the conduct of the business, nor they have been said to be involved in the manufacturing of the alleged adulterated cold drink. Therefore, he has submitted that the charges framed against the accused petitioners are not sustainable under law and the learned Court below has committed illegality and an abuse of the process of the Court, in doing so. 7. The learned Public Prosecutor, representing the non-petitioners have tried to support the impugned judgments passed by the Courts-below. He has submitted that the petitioners are very much responsible and liable for the said adulterated cold drink which has been recovered by the Food Inspector and the charges framed against them are in accordance with law. 8. I have given my thoughtful consideration to the rival submissions made by the parties. The petitioners have placed on record a number of documents which are either public documents or the documents issued by the Authorities of the respondents. On perusal of the complaint (Annexure-2), it is revealed that there is no assertion to the effect that the petitioners were in-charge of and responsible to the Company for the conduct of its business or in what manner they were liable for the conduct of the business of the Company so that they may be vicariously liable. It is true, that in the title of the complaint, the name of the petitioners and one another namely; E.N. Contractor (Deceased)have been mentioned as promoters or partners. Merely, by making averment in the title of the complaint, in my opinion, a presumption cannot be raised that they are automatically in charge of and responsible for the conduct of the business of the Company. Therefore, in absence of specific assertion in the complaint, in the manner provided under the law, neither the cognizance could have been taken nor the charges framed against the petitioners. 9. It is a settled principle of law since long, as have been held in the Case of Smt. Nagawwa Vs. Veerappa Shjivalingappa Konjalgi (AIR 1976 SC 1947) that if allegations made in the complaint, are taken on their face value, do not make out a case against the accused petitioners or that the complaint does not disclose the essential ingredients of an offence which are alleged against the accused petitioners, thenm the High Court in its exercise of inherent powers can/should quash the criminal proceedings against such an accused. 10. Likewise, in the Case of Sharda Prasad Vs. State of Bihar (AIR 1977 SC 1754), it has been held by the Apex Court that where the allegations made in the complaint or in the charge-sheet do not constitute any offence, the High Court is competent to exercise its inherent jurisdiction so as to quash the proceedings before the learned Magistrate. 11. In the celebrated judgment of Municipal Corporation Delhi Vs. Ramkishan Rohatagi (AIR 1983 SC 67) it had been held that in the complaint of that case, so far as the Directors were concerned, there was no whisper nor any evidence nor anything to show that there was any act committed by the Directors from which a reasonable inference can be drawn that they can also be vicariously liable. In such circumstances, the Hon'ble Supreme Court has held that no case was made out ex-facie on the allegations made in the complaint against the Directors. Similar is the position in the instant case, where there is not even a whisper in the complaint nor a shred of evidence on record against the petitioners. 12. Further more, in the instant case, there is no averment/allegations in the complaint as to who is the person nominated or is in charge of and responsible to for the conduct of business of the Company. The relevant provisions of law in this regard is under Section 17 of the Act, which reads as under:- “17. Offence by Companies- (1) Where an offence under this Act has been committed by a company- (a)(i) the person, if any, who has been nominated under sub- section (2) to be in charge of, and responsible to, the company for the conduct of the business of the company (hereinafter in this section referred to as the person responsible) or (ii) Where no person has been so nominated, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company; (b) the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against any punished accordingly; Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge and shall be exercised all due diligence, to prevent the commission of such offence. (2).Any company may, by order in writing, authorise 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 establishment, or branches or different units in any establishment or branch, different persons may be nominated under this sub-section in relation to different establishment 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. (3). The person nominated under sub-section(2) shall, until- (i). further notice canceling such nomination is received from the company by the Local (Health) Authority; or (ii).he ceases to be a Director or, as the caser may be, Manager of the company; or (iii). He makes a request in writing to the Local (Health) Authority, under intimation to the company, to cancel the nomination which request shall be complied with by the Local (Health) Authority. Whichever is the earliest, continue to be the person responsible; Provided that where such person ceases to be a Director or as the case may be, Manager of the company, he shall intimate the fact of such ceaser to the Local (Health) Authority; Provided further that where such person makes a request under clause (iii), the Local (Health) Authority shall not cancel such nomination with effect from a date earlier than the date on which the request is made. (4). Notwithstanding anything contained in the foregoing sub- sections, where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or attributable to, any neglect on the part of, any Director, Manager, Secretary or other officer of the company, not being a person nominated under Sub-section (2) such Director, Manager, Secretary or other officer of the company, not being a person nominated under sub- section (2) such Director, Manager, Secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation- For the purposes of this Section- (a)”Company” means anybody corporate and includes a firm or other association of individuals; (b) “director”, in relation to a firm, means a partner in the firm; and (c) “manager” in relation to a company engaged in hotel industry, includes a person-in -charge of the catering department or any hotel managed or run by it.” Therefore, the criminal proceedings before the court-below is not sustainable in law as against the petitioners on this count also. 13. It is the case of the prosecution itself,that the petitioner No.1, Ramesh Chand Jain is a promoter of the company. A promoter of the Company is neither a Director of the Company nor he can be said to be the in-charge of and responsible to the Company for the conduct of its business so as to make him vicariously liable. It is relevant to mention here that a promoter has been defined under section 62(6) of the Companies Act,1956 which reads as under:- S.62(6)-For the purposes of this section- (a) the expression “Promoter” means a promoter who was a party to the preparation of the prospectus or of the portion thereof containing the untrue statement, but does not include any person by reason of his acting in a professional capacity for persons engaged in procuring the formation of the company.“ 14. As has been pleaded on behalf of the petitioners also this matter can be considered from yet another angle. It is an un-controverted fact that the instant criminal case was initiated on 18.12.1987 when the complaint was lodged and despite of passing a long period, the trial is still at the stage of framing charge. In other words, the instant trial is pending for last twenty years. Therefore, the petitioners are facing protracted trial. In no manner any delay, fault or dilatory tactics has been caused by the petitioners. The petitioners definitely has a right to speedy trial as enshrined in Article 21 of the Constitution of India. Since, the year 1987, the petitioners are facing the ordeal of trial and it would not be in the interest of justice to expose them for further mental torture, physical harassment and burden in continuing the trial of this case, particularly, when there is practically no evidence agaisnt the petitioners and chances of their conviction are almost nil. It is a settled principle of law, laid-down by the Apex Court in a catena of judgments and also in the celebrated judgment in the Case of A.R. Antulay etc/ Vs. R.S.Nayak and Another, (AIR 1992 SC 1701), wherein it has been held that fair, just and reasonable procedure implicit in Article 21 of the Constitution of India, creates a right in the accused to be tried speedily, , that the right to speedy trial is the right of the accused and the fact that the speedy trial is also in public interest. The Hon'ble Supreme Court has further held that the right to speedy trial is flowing from Article 21 of the Constitution encompasses all the stages namely, the stage of investigation, inquiry, trial, appeal, revision and retrial. It has been emphasized that worry,anxiety, expense and disturbance to his vocation and peace resulting from an unduly prolong investigation, inquiry or trial should be minimum and that undue delay may result in impairment of the ability of the accused to defend himself. Therefore,in my opinion, the trial in the instant case which had been initiated in the year 1987 and in view of the stage to which it has reached so far, still more time is likely to be taken in its conclusion. Therefore, the petitioners have a right tohave speedy trial as enshrined in Article 21 of the Constitution of India, and it has been offended, moreover, when this case is almost a dead one. 15. Consequently, for the reasons stated above, this Criminal Misc. petition is allowed and the charges framed against the petitioners for the offence under Section 7/16 of the Prevention of Food Adulteration Act, as also the proceedings in Criminal Case No.534/1987 State Vs. Kailash Chand and Ors., pending in the Court of learned ACJM Kishangarh, District, Ajmer, to the extent of petitioners are hereby quashed. (Raghuvendra S. Rathore),J. Bhatt