apeal366of12.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.366 OF 2012
The Bureau of Indian Standars,
The Govt. of Indian Organization,
Established Under the Bureau of
Indian Standard Act, 1986
Through its Director Shri. Kancharla Raja,
aged about - Adult,
Branch Office
At 2nd Floor, NIT Building, Gokulpeth,
Nagpur. .....APPELLANT
...V E R S U S...
1 M/s. Jailaxmi Agro Industries,
Near River Bridge, N.H. No.6,
Bhandara Road, Khasara No. 75/7,
Village Mahalgaon Kapsi,
Tahsil Kamptee, District Nagpur
2 Govindrao Mahadure,
Aged - Adult, Prop. Of M/s.
Jailaxmi Agro Industries,
Mahalgaon Kapsi,
Near River Bridge, N.H. No. 6,
Bhandara Road, Khasara No. 75/7,
Village Mahalgaon Kapsi,
Tahsil, Kamptee, District Nagpur
3 Ulhas s/o. Govindrao Mahadure,
Manager, M/s. Jailaxmi Agro
Industries, Mahalgaon Kapsi,
Near River Bridge, N.H. No. 6,
Bhandara Road, Khasara No. 75/7,
Village Mahalgaon Kapsi,
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apeal366of12.odt 2
Tahsil, Kamptee, District Nagpur
4 The Secretary,
Department of Home
Affairs, Mantralaya, Mumbai. ...RESPONDENTS
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Mr. D.S. Wasnik, counsel for the Appellant.
Mr. Piyush Shukla, counsel for Respondent 1 to 3.
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CORAM:
ROHIT B. DEO, J.
DATE:
NOVEMBER 02, 2017 ORAL JUDGMENT:
The appellant is aggrieved by judgment and order dated 12.3.2012 passed by the Judicial Magistrate First Class, Kamptee in Regular Criminal Case 451 of 2004, by and under which the respondents / accused are acquitted of offences punishable under sections 11 and 12 read with section 33 of the Bureau of Indian Standards Act, 1986 (hereinafter referred to as "the Act").
2 Respondent 2 - original accused 2 - Govindrao Mahadure expired during the pendency of the appeal on 29.6.2016 and the appeal stands abated as against the said accused.
::: Uploaded on - 02/11/2017 ::: Downloaded on - 04/11/2017 01:47:55 ::: apeal366of12.odt 3 3 Accused 1 - M/s. Jailaxmi Agro Industries is described as the proprietary firm of the deceased accused 1. Needless to say, the appeal shall also stand abated as against respondent 1 / accused 1- M/s. Jailaxmi Agro Industries. Respondent 3 / accused 3 is described in paragraph 4 of the complaint as manager of M/s. Jailaxmi Agro Industries. In view of the death of Govindrao Mahadure, the proprietor of M/s. Jailaxmi Agro Industries, the only issue for determination in the appeal is whether the acquittal of respondent 3 / accused 3 - Ulhas Mahadure who is described as manager of M/s. Jailaxmi Agro Industries, is in accordance with law.
4 Shri. D.S. Wasnik, the learned counsel for the appellants would submit that respondent 3 / accused 3, although described only as Manager, is responsible for the infringement of the provisions of the act committed by the respondent 1 and respondent 2, in view of the provisions of section 35 of the Act which read thus:-
"35.(1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was reasonable to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be ::: Uploaded on - 02/11/2017 ::: Downloaded on - 04/11/2017 01:47:55 ::: apeal366of12.odt 4 liable to be proceeded against and punshed 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 or that he had exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), 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 is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, 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 purpose of this section,
-
(a) "company" means any body corporate and includes a firm or other association of individuals; and
(b) "director", in relation to a firm, means a partner in the firm.
5 The submission is noted only for rejection. Firstly, it is alleged in the complaint that M/s. Jailaxmi Agro Industries is a proprietary concern of Govindrao Mahadure. Respondent 3 - Ulhas Mahadure is described in the complaint as manager of the ::: Uploaded on - 02/11/2017 ::: Downloaded on - 04/11/2017 01:47:55 ::: apeal366of12.odt 5 said establishment. In view of the phraseology employed in section 35 of the Act, it is extremely doubtful whether the said provision fastening vicarious liability can be invoked when the offender is a proprietary concern. Moreover, there is absolutely no averment in the complaint nor is any evidence adduced to suggest that respondent 3 - Ulhas Mahadure was in charge of, and was responsible to, M/s. Jailaxmi Agro Industries for conduct of the business of the said establishment.
The acquittal of respondent 3/ accused 3 - Ulhas Mahadure is unexceptionable.
The appeal is without substance and is dismissed.
JUDGE RS Belkhede ::: Uploaded on - 02/11/2017 ::: Downloaded on - 04/11/2017 01:47:55 :::