Bombay High Court

K. N. Grant, Director C/O I.T.C. ... vs The State Of Mah. Food And Civil ... on 25 January, 2018

Bench: V.M. Deshpande

                                               1        appln1471.1608.10.odt

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

                  CRIMINAL APPLICATION NO.1471/2010

      K. N. Grant, Director,
      c/o ITC Limited, Virginia House,
      37, J L Nehru Road, Kolkata-700071            .....APPLICANT

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

 1. The State of Maharashtra through
    Food and Civil Supplies Department,
    Mantralaya, Madam Cama Road,
    Mumbai- 400 032.

 2. The Inspector of Legal Metrology,
    Amravati Division 3, having its 
    Office at c/o Dr. Borade Hospital,
    2, Anand State Bank Colony, 
    Central Jail Road, Camp,
    Amravati 444 602.                               ...NON APPLICANT

                                 AND
                  CRIMINAL APPLICATION NO.1608/2010

 1. Mr. Yogesh Chander Deveshwar
    Chairman, ITC Ltd. Virginia House,
    37, J L Nehru Road, Kolkata-700071
    through his power of attorney, 
    Bishwa Behali Chatterjee.

 2. Mr. Krishnamoorthy Vaidyanath,
    Director, ITC Limited, Virginia House,
    37, J L Nehru Road, Kolkata-700071              .....APPLICANTS

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

 1. The State of Maharashtra through
    Food and Civil Supplies Department,
    Mantralaya, Madam Cama Road,
    Mumbai- 400 032.




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 2. The Inspector of Legal Metrology,
    Amravati Division 3, having its 
    Office at c/o Dr. Borade Hospital,
    2, Anand State Bank Colony, 
    Central Jail Road, Camp,
    Amravati 444 602.                                        ...NON APPLICANT

 -------------------------------------------------------------------------------------------
 Mr.   Sunil   Manohar   Senior   Advocate   with   Mr.   N.   A.   Gaikwad,
 Advocate for applicants. 
 Mr. N. B. Jawade, A.P.P. for non applicants-State
 -------------------------------------------------------------------------------------------
                               CORAM:- V. M. DESHPANDE, J.
                               DATED :- 25.01.2018

 JUDGMENT

1. These two applications can conveniently be decided by

this common judgment since in both these applications, the prayer is

to quash and set aside Criminal Complaint No.2201/2010 pending

on the file of Judicial Magistrate First Class, Court No.10, Amravati

and to set aside the order of issuance of process dated 25.08.2010

passed by the said learned Judicial Magistrate First Class.

2. Heard Mr. Sunil Manohar, learned Senior Counsel for the

applicants and Mr. N.B. Jawade, learned A.P.P. for the non

applicants-State.

3. The applicants in these applications are Directors of a

Company by name; ITC Limited registered under the Companies Act

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(hereinafter referred to as the "Company"). The Company is a multi

divisional and multi produce Company and it is engaged in various

businesses of trading in bulk in various agricultural commodities and

in retail sale of various fast moving consumer goods. It also sales

various agricultural inputs like seeds, insecticides, fertilizers and

other agricultural implements, machines and equipments through its

one of division which is known as 'Agri Business Division' having its

headquarters at Secunderabad. The Agri Business Division has

branches in various States of the country. One of such branch is

situated at Nagpur.

4. According to the applicant, Agri Business Division of the

Company has set up various farmer facilities centres which are called

as 'Choupal Sagar' in different parts of the State. One of such

Choupal Sagar is set up at Nandgaonpeth, Amravati. The farmers

can also buy their domestic requirements and farm needs from the

said retail outlet.

5. It is the case of the applicant that on 26.02.2010, the

Inspector of Legal Metrology, Amravati Division, Amravati, seized

four Kurtas of 'Sultan' brand vide seizure memo dated 26.10.2010. As

per the seizure memo, the said Kurtas were seized on the ground that

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the said Kurtas which were kept in display in the show-case for

selling purpose, did not disclose the measurements as per the

Standards of Weights and Measures Act. Further, instead of

mentioning maximum retail price (MRP), the Kurtas carried 'Choupal

Sagar Price' of Rs.249/- which includes all taxes.

6. Non applicant no.2 filed a criminal complaint before the

learned Magistrate against the applicants and others under the

provisions of Section 39 of the Standards of Weights and Measures

Act, 1976 read with Rule 23 (1) of the Standards of Weights and

Measures (Packaged Commodity) Rules, 1977 and under Section 63

of the Standards of Weights and Measures Act, 1976. The said

criminal complaint is registered as Compliant Case No.2201/2010

and the learned Magistrate, according to the applicants, has without

applying mind passed the order summoning the applicants to appear

in the Court.

7. Mr. Manohar, learned Senior Counsel for the applicants,

submitted that the applicants are not incharge of and not responsible

for any day-to-day management and the activities of Choupal Sagar.

He invited my attention to the complaint to show that there are no

allegations or averments in the complaint that the applicants were

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incharge of the company or are responsible to the Company for its

day-to-day management and business or they have consented for the

act. He submitted that in absence of specific role being attributed to

the applicants, they cannot be impleaded in the complaint as the

accused and filing of the complaint against the applicants is an abuse

of process of law. He submitted that the issue is already decided in

various cases under the various Acts. He invited my attention to the

case in Santanu Jagatbandhu Sinha .Vs. State of Maharashtra;

reported in 2007 (5) AIR Bom R 740

8. Section 62 of the Standards of Weights and Measures Act

reads as under:

"62. Offences by Companies.--

(1) If the person committing an offence under this Act is 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 nothing contained in this sub- section shall render any person liable to punishment 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.

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(2) Notwithstanding anything contained in sub-section (1), where any 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."

9. By now the law is well settled in view of various decisions

of the Hon'ble Apex Court in S.M.S. Pharmaceuticals Ltd .Vs. Neeta

Bhalla and anr; reported in (2005) 8 SCC 89, and the view of this

Court in Charandas Vallabhdas Mariwala and ors. .Vs. The State

of Maharashtra, judgment dated 10.07.2014, by which it is ruled

that the complaint must contain pleadings to the effect that the

persons who are sought to be prosecuted are either incharge of the

business or responsible to the company for conduct of business.

10. In the present case, there is no whisper in the complaint

that the present applicants are responsible for day-to-day affairs of

the company or the Choupal Sagar.

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