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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO.271 OF 2014
1. Shital Kaushik Majithia,
age 45 years, Occ. Director of
Urmin Products Private Limited,
R/o Urmi Kunj, Near Satatya
Green B/H Rajpath Club,
Bodakdev, Ahmedabad.
2. Krishna Rajendra Majithia,
age 46 years, Occ. Director of Urmin
Products Private Limited,
R/o Urmi Kunj, Near Satatya
Green B/H Rajpath Club,
Bodakdev, Ahmedabad.
3. Sarika Tejas Majithia,
age 39 years, Occ. Director of Urmin
Products Private Limited,
R/o Urmi Kunj, Near Satatya
Green B/H Rajpath Club,
Bodakdev, Ahmedabad. ... Applicants.
-vs-
1. The State of Maharashtra
Thr. Safety Officer, Food and
Drug Administration,
Administrative Building,
Room No.21 and 22, Chandrapur.
2. Jitendra Premjibhai Thakkar
age 41 years, M/s Jaya Trading Company,
Ganj Ward, Near S. P. College, Chandrapur,
Tah. & Dist. Chandrapur. ... Respondents.
Shri M. G. Bhangde, Senior Advocate with Shri Ajay Somani, Advocate for
applicants.
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Shri S. D. Sirpurkar, Addl. Public Prosecutor for respondent No.1.
CORAM : S. B. SHUKRE, J.
DATE : October 14, 2016 Oral Judgment :
Admit.
Heard finally with consent of learned counsel for the parties.
By this application, the applicants have sought quashing of the proceedings of Complaint Case bearing No.497/2013 filed against them as well as respondent No.2 for the offence punishable under Section 59 of the Food Safety and Standards Act, 2006 (hereinafter referred to as the said Act) relating to violation of the Notification dated 20/07/2012.
2. Shri Bhangde, the learned senior counsel has invited my attention to the complaint which shows that it has been filed against the four respondents out of which respondent Nos.1 to 3 are the Directors of the Company by name M/s Urmin Products Pvt. Ltd. He submits that basically the allegation is that the offence punishable under Section 59 of the said Act has been committed by the Company and the Directors of the Company have been sought to be arraigned as accused by virtue of principle of vicarious liability, they being in-charge of affairs of the Company and being responsible for its various acts. He submits that it is a well settled principle of law that when the offence is alleged to be committed by the Company ::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:11:55 ::: Cri.APL-271-14 3/6 concerned, the Directors alone could not be arraigned as accused and that it is imperative that the Company is first made an accused. He submits that it is also the mandate of Section 66 of the said Act. He further submits that while interpreting a similar provision, Section 149 of the Negotiable Instruments Act, the Honourable Apex Court in case Anita Hada vs. State and Anr. (2012) 5 SCC 661 has held that without the Company being arraigned as an accused, prosecution under Section 141 of the N. I. Act could not be maintained against only the Directors of the Company.
According to him the same interpretation would have to be given to Section 66 of the said Act.
The learned Additional Public Prosecutor for the respondent/State fairly concedes that the Company has not been made an accused. He submits that an appropriate order may be passed in this case.
4. In the case of Anita Hada (supra) the Honourable Apex Court has laid down that under Section 141 of the Negotiable Instruments Act while prosecuting a Company for the offence in respect of dishonour of cheque punishable under Section 138 of the Act, Directors as well as the Company should be arraigned as accused, and in the absence of the company being made an accused, the prosecution of Directors only cannot be maintained.
Section 66 of the said Act is in para materia with Section 141 of the Negotiable Instruments Act and therefore there is no reason for me to not ::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:11:55 ::: Cri.APL-271-14 4/6 apply the ratio of Anita Hada while interpreting the mandate of Section 66 of the Act which also lays down that when the offence is alleged to be committed by the Company, not only the Directors who are in-charge of and who are responsible for the various acts of the Company should be made an accused but the Company also should be made an accused. In the instant case, the Company has not been arraigned as an accused and therefore following the law laid down by the Honourable Apex Court as well as mandate of Section 66 of the Act, I find that the prosecution against the Directors only cannot be allowed to be continued. Its further continuation, in absence of the Company being an accused, would be an abuse of process of law. The application, therefore, deserves to be allowed.
5. Shri Bhangde, the learned senior counsel for the applicants has also submitted that the Notification dated 19/07/2012 does not cover the present case wherein the only allegation is that respondent No.2 has stored Zarda for sale manufactured by the Company of the applicants. He submits that the Notification dated 19/07/2012 applies to Gutkha or paan masala and not to Zarda or tobacco. The learned Addl. Public Prosecutor does not agree.
6. I must say, I have already found that the prosecution against the applicants is not maintainable for not following the mandate of Section 66 of ::: Uploaded on - 20/10/2016 ::: Downloaded on - 21/10/2016 00:11:55 ::: Cri.APL-271-14 5/6 the Act, and therefore, I do not think it necessary to consider the said submission canvassed on behalf of the applicants.
7. In the result, the application is allowed.
The proceedings of Complaint Case No.497/2013 are hereby quashed and set aside.
ig JUDGE
Asmita
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