Bombay High Court
Smt. Shital Kaushik Majithia And 2 ... vs The State Of Maharashtra Through ... on 14 October, 2016
Bench: S.B. Shukre
Cri.APL-271-14 1/6
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
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
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
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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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