Bombay High Court
The Bureau Of Indian Standards, ... vs M/S Jailaxmi Agro Industries ... on 2 November, 2017
Bench: R. B. Deo
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.
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
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
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
