Hemant S/O Sukaji Funde vs State Of Maharashtra, Thorugh ...
2017 Latest Caselaw 6776 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH AT NAGPUR

               CRIMINAL APPLICATION (APL) NO.61/2014

      Hemant s/o Sukaji Funde, 
      aged 57 years, Occ. Agriculturist, 
      r/o Narayan Nagar, Amgaon Gondia 
      Road, Tq. Amgaon, Dist. Gondia.                        .....APPLICANT

                               ...V E R S U S...

      State of Maharashtra through 
      Food Safety Officer, Food and Drug 
      Administration (M.S.) Bhandara.                         ...NON APPLICANT
 -------------------------------------------------------------------------------------------
 Mr. S. A. Bramhe, Advocate for applicant. 
 Mr. R. S. Nayak, A.P.P. for non applicant-State
 -------------------------------------------------------------------------------------------
                               CORAM:- V. M. DESHPANDE, J.

DATED :- 05.09.2017

ORAL JUDGMENT

1. Heard Mr. S. A. Bramhe, Advocate for applicant and

Mr. R.S. Nayak, A.P.P. for non applicant-State. The present

proceeding is under Section 482 of the Code of Criminal Procedure

for quashing of the Regular Criminal Case No.129/2013 pending on

the file of Judicial Magistrate First Class, Amgaon for an offence

under Section 3 (1) (zz) (ix), 26 (1), 26 (2) (i), 27 (2) (c)

punishable under Section 59 of the Food Safety and Standards

Act, 2006.

Along with compilation, the complaint which gives rise

to present proceeding is annexed and it is at page nos.35 to 45.

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2. The present applicant is shown as accused no.2 in the

said complaint. The cause title of the complaint depicts that he is

Secretary of Gurukrupa Adiwasi Prathmik and Madhyamik

Ashramshala, Thana, Tq. Amgaon, Dist. Gondia. As per the

complaint, the complainant Shri P. A. Umap, is Food Safety Officer

duly appointed under Section 37 read with Rule 2.1.2 of the Food

Safety and Standards Act, 2006 and Rules thereunder (hereinafter

referred to as the "Act" and "Rules" for the sake of brevity). The

said Shri Umap is appointed as Food Safety Officer vide

notification No.FSSA/MS/FDA/Food Safety Officers dated

01.08.2011. The complaint further proceeds that on 15.09.2012,

at about 13.30 hrs. the complainant along with panch witness

visited the premises of accused no.3-Gurukrupa Adiwasi Prathmik

and Madhyamik Ashramshala, Thana, Tq. Amgaon, Dist. Gondia.

That time accused no.1-Raju Narayan Chute, Superintendent was

present in the premises and was looking after the stock of food

articles including rice for preparation of meals for students.

3. The complainant disclosed his identity and also his

intention for drawing sample of the food articles. The

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complainant, after disclosing his intention for drawing the sample

of rice under the said Act for test and analysis and demanded and

purchased 2 Kg. Rice from the accused and paid the cost of

Rs.13.30/- of it as per the market rate and obtained cash receipt

for the same. Thereafter, he issued notice in Form V-A to the

accused no.1 informing him that the sample was taken for analysis

and obtained receipt for the same. Thereafter complainant issued

notice under Rule 2.4.1 (4) to the accused no.1 asking thereby the

source of sampled food article of rice and also about the fourth

part and obtained receipt for the same. It was replied by accused

no.1 in writing that rice is supplied by Tahsildar, Amgaon, Dist.

Gondia and he does not intend to send the fourth part to any

laboratory.

4. Subsequent to that, the complainant at the spot itself

divided the rice in four equal parts. Each part of rice was put in

clean and dry empty plastic jar and closed the mouth of the jar

and it was sealed. The complainant thereafter affixed a label on

each part of the sample detailing therein about food article, place

and date of sampling and paper slip number and signature of the

complainant, panch witness and accused no.1. Thereafter, the

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complainant wrapped each part of the sample in thick brown

paper and pasted a paper slip of Shri M. S. Kembalkar, the then

Designated Officer, Food and Drug Administration (M.S.),

Bhandara bearing Code No.FSSA/BH/DO-1, Sr.No.0142 from

bottom to top and obtained cross-signature of accused no.1 on

each part of sample in such a way that part of signature will

appear on brown paper. Thereafter the complainant seized the

remaining stock of 3948 Kg. rice cost of which was Rs.26,254/- as

per the powers delegated to him under Section 38 of the said Act

by giving notice in Form Nos.II and III and kept the seized rice in

safe custody of accused no.1 till further orders. The complainant

thereafter on 17.09.2012 sent a sample of rice to the Food Analyst,

Regional Public Health Laboratory, Nagpur.

5. The complainant received the analytical report of rice

of Food Analyst, RPHL/NGP/FSSA/57/12, dated 24.09.2012. The

said report reveals that the sample of rice does not conform

Regulation No.2.4.6.5 of Chapter 2 of Food Safety and Standards

(Food Products Standards & Food Additives) Regulation, 2011 and

also violates Section 3 (zz) (ix) of the said Act.

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6. The report was received on 16.10.2012. According to

the complaint, the sample is unsafe under Section 3 (1) (zz) (ix)

of the said Act. The necessary inquiry was made with the accused

persons and thereafter the complainant submitted the proposal

before the Designated Officer for sending the proposal to the Food

Safety Commissioner for grant of permission to file the case before

the Court as required by the Act along with copy of related papers.

The complaint further states that the complainant received

sanction order on 04.09.2013 from the Joint Commissioner (Food)

H.Q. Food and Drug Administration, Mumbai to file the case

before the Court through the Designated Officer. Accordingly, the

complaint was filed.

7. Section 3 of the Act deals with definitions. Section 3

(1) (zz) deals with unsafe foods, which reads as under:

"(zz) "unsafe food" means an article of food whose nature, substance or quality is so affected as to render it injurious to health.

(i) to (viii) .....

(ix) by the article having been infected or infested with worms, weevils or insects; or

(x) to (xii) ....."

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Section 26 which falls under Chapter VI having title,

"Special Responsibilities As To Food Safety" reads as under:

"26. Responsibilities of the food business operator.- (1) Every food business operator shall ensure that the articles of food satisfy the requirements of this Act and the rules and regulations made thereunder at all stages of production, processing, import, distribution and sale within the businesses under his control.

2. No food business operator shall himself or by any person on his behalf manufacture, store, sell or distribute any article of food-

        (i)        which is unsafe; or
        (ii)       which is misbranded or sub-standard or contains
        extraneous matter; or
        (iii)      for   which   a   licence   is   required,   except   in

accordance with the conditions of the licence; or

(iv) which is for the time being prohibited by the Food Authority or the Central Government or the State Government in the interest of public health; or

(v) in contravention of any other provision of this Act or of any rule or regulation made thereunder. (3) No food business operator shall employ any person who is suffering from infectious, contagious or loathsome disease.

(4) No food business operator shall sell or offer for sale any article of food to any vendor unless he also gives a guarantee in writing in the form specified by

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regulations about the nature and quality of such article to the vendor:

Provided that a bill, cash memo, or invoice in respect of the sale of any article of food given by a food business operator to the vendor shall be deemed to be a guarantee under this section, even if a guarantee in the specified form is not included in the bill, cash memo or invoice.

(5) Where any food which is unsafe is part of a batch, lot or consignment of food of the same class or description, it shall be presumed that all the food in that batch, lot or consignment is also unsafe, unless following a detailed assessment within a specified time, it is found that there is no evidence that the rest of the batch, lot or consignment is unsafe:

Provided that any conformity of a food with specific provisions applicable to that food shall be without prejudice to the competent authorities taking appropriate measures to impose restrictions on that food being placed on the market or to require its withdrawal from the market for the reasons to be recorded in writing where such authorities suspect that, despite the conformity, the food is unsafe."

Since Section 26 deals with responsibilities of the food

business, it would be useful to refer to the definition of "Food

Business Operator". The said definition can be noticed in Section

3 (1) (o) of the Act, which reads thus:

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"(o) "food business operator" in relation to food business means a person by whom the business is carried on or owned and is responsible for ensuring the compliance of this Act, rules and regulations made thereunder;"

Section 27 of the Act deals with the liability of

manufacturers, packers, wholesalers, distributors and sellers.

8. Chapter IX of the Act deals with offence and penalties.

Section 66 of Act, which falls under said chapter deals with the

offence by companies and it reads as under:

"66. Offences by companies. -

1. Where an offence under this Act which has been committed by a company, 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, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that where a company has different establishments or branches or different units in any establishment or branch, the concerned Head or the person in-charge of such establishment, branch, unit nominated by the company as responsible for food safety shall be liable for contravention in respect of such establishment, branch or unit:

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Provided further 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 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."

9. To test the submission of the applicant that the present

complaint against him is nothing but an abuse of process of law, it

would be useful to have a glance towards the provisions of Section

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141 of the Negotiable Instruments Act, Section 17 of the

Prevention of Food Adulteration Act and Section 34 of the Drugs

and Cosmetics Act.

This Court (Coram: V.M. Deshpande, J.) has already

found that Section 141 (1) of Negotiable Instruments Act and

Section 17 of the Prevention of Food Adulteration Act, 1954 are

somewhat similar in nature. Section 34 of the Drugs and

Cosmetics Act, 1940 which falls under chapter V of the said Act

deals with offences by the company. Section 34 reads thus:

"34.Offences by companies:-

(1) Where as offence under this Act has been committed by a company, every person who at the time of the offence was committed, was incharge of, and was responsible to the company for the conduct of the business of the company, as sell as the company shall be deemed to be guilty of the offence and shall liable to be proceeded against and 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 or that he exercised all due diligence to prevent the commission of such offence.

(2) Not withstanding anything contained in sub- section (1), where an offence under this Act has been

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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 negligent 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 a 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."

10. Section 34 of the Drugs and Cosmetics Act and Section

66 of the Act are pari materia. The decision given by Hon'ble

Division Bench of the Apex Court in S.M.S. Pharmaceuticals Ltd.

Vs. Neeta Bhalla; AIR 2005 SC 3512, was referred to the Larger

Bench on certain questions. Question (b), which was posed to the

Larger Bench is as under:

"(b) Whether a Director of a company would be deemed to be in charge of and responsible to, the company for conduct of the business of the company and, therefore, deemed to be guilty of the offence unless he proves to the contrary."

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Ultimately, the Larger Bench gave its answer to

question (b) posed in Reference, as under:

"(b) The answer to the question posed in sub-para

(b) has to be in the negative. Merely being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases."

11. This Court (Coram: V.M.Deshpande, J.) has, vide

judgment dated 01.09.2017 interpreted Section 34 of the Drugs

and Cosmetics Act in Criminal Application No.3684/2009, Shri

Ramprakash Gulati s/o A.N. Gulati and anr. .Vs. State of

Maharashtra, at the instance of Wazir Mohammad, Drugs

Inspector, Food and Drugs Administration and concurred with the

view taken by this Court in Ramprakash Gulati & anr. Vs. State

at the instance of S.b. Ghotkar, 2010 ALL MR (Cri) 493.

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12. In the backdrop of aforesaid law, now let us examine

what are the pleadings made in the complaint vis-a-vis the present

applicant. On a closer scrutiny of the complaint, the only

allegations which were found against the present applicant are in

paragraph 2 of the complaint, which is reproduced as under:

"2) That the accused no.1 is a Superintendent and Vendor of Gurukrupa Adiwasi Prathmik & Madhyamik Ashramshala, Thana, Tq. Amgaon, Dist. Gondia and using the said rice for preparation of meal for students. The accused no.2 is Secretary of Gurukrupa Adiwasi Prathmik and Madhyamik Ashramshala, Thana, Tq. Amgaon, Dist. Gondia. The accused no.4 is the then Storage Superintendent of Maharashtra State Warehousing Corporation, Amgaon, Dist. Gondia and accused no.5 is the then Warehouse Manager of Central Warehousing Corporation, Gondia."

13. The complaint thus only states that present applicant is

Secretary of the accused no.3. Besides that there is no iota of any

pleadings to the effect that at any point of time the present

applicant was entrusted with or was incharge of the day-to-day

affairs of the accused no.3.

Reading of Section 34 (2) of the Act states that where

an offence under this Act has been committed by a company and it

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is proved that the offence has been committed with the consent or

connivance of, or is attributable to any negligence 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.

14. The company, for the purpose of Section 66 is defined

under explanation, which is below Section 66 (2) of the Act, which

reads thus:

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."

Thus, Section 66 (2) of the Act clearly mandates that if

the director, manager, secretary or any other officer of the

company is shown to be an accused in the complaint, then it is

obligatory on the part of the complainant to show that the offence

is committed with the consent or connivance. Merely because that

a person is director, manager or secretary is not self sufficient to

establish that offence is committed with his consent or connivance

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in the absence of basic pleading in that behalf. In absence of such,

merely because the complaint is filed against the applicant who is

Secretary, in my view he is not required to face the gamut of the

prosecution at the behest of the complainant.

11. There are no accusations in the entire complaint

against the present applicant that the applicant is responsible for

the food product not in conformity with the standards. In absence

of such accusation, it is really difficult to hold that the Secretary

can be prosecuted by taking aid of Section 66 (2) of the Act.

12. In that view of the matter, following order is passed.

ORDER

(i) Criminal Application (APL) No.61/2014 is allowed.

(ii) Regular Criminal Case No.129/2013, pending on the file of Judicial Magistrate First Class, Amgaon, is quashed and set aside against the present applicant to his extent only and consequently it is dismissed against him.

(iii) Insofar as the other accused persons are concerned, the same shall be disposed of by the learned Magistrate as expeditiously as possible.

JUDGE kahale