Bombay High Court
Ramchandra Kaundinya Vinnakota vs The State Of Maharashtra on 18 October, 2024
2024:BHC-AUG:25633
(1) cri apln 4193.19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 4193 OF 2019
Mr. Ramchandra Kaundinya Vinnakota
Director of M/s. Syngenta India Limited,
having his office at Amar paradigam, S.NO
110/11/3, Baner Road, Pune 411 045. ... APPLICANT
V/s.
The State of Maharashtra,
through Mr. P.P. Vibhandik
Inspector of Legal Metrology,
Pachora Division, Dist. Jalgaon. ... RESPONDENT
.....
Mr. K.H. Parekh h/f. A.N. Ayachit, Advocate for the Applicant
Mr. V. M. Jaware, APP for the Respondent-State
.....
CORAM : Y.G. KHOBRAGADE, J.
RESERVED ON : 09.10.2024
PRONOUNCED ON : 18.10.2024
JUDGMENT:
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1. Rule. Rule made returnable forthwith. With the consent of both
the sides, the matter is heard finally.
2. Having regard to the rival submissions canvassed on behalf of both
the sides, I have gone through the record.
3. By the present application under Section 482 of Code of Criminal
Procedure, 1973, the Applicant is seeking quashment of the Criminal Complaint
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bearing SCC No. 25 of 2019 pending on the file of the learned Judicial
Magistrate First Class, Pachora, Dist. Jalgaon. The present Applicant is the
original Accused in Criminal Complaint bearing SCC No. 25 of 2019 instituted
by the Respondent/Complainant - Inspector Legal Metrology Department.
4. It is not in dispute that the present Applicant is one of the Directors
of M/s Syngenta India Limited. Mr. P. P. Vibhandik, Inspector Legal Metrology
Department is appointed under Section 13 of the Legal Metrology Act, 2009.
He made a surprise visit to M/s. Paras Krishi Kendra at Pachora on 9 th July,
2018. During course of inspection of said establishment he found packages of
brand "Gramoxone" kept for sale by the retailer, which have been
manufactured by the Industrial establishment M/s. Syngenta India Limited and
the manufacturer has not maintained the height of numeral in the declaration
as required, which violates the provisions of Legal Metrology Act, 2009 and the
same is an offence u/s 18 of the Legal Metrology Act, 2009 read with Rule
7(2). Therefore, the Inspector Legal Metrology Department instituted a
complaint before the Judicial Magistrate F.C, Pachora. Accordingly, on 8 th July,
2019, the learned Magistrate has issued the summons against the present
Applicant/ original Accused.
5. Mr. Parekh, the learned counsel appearing for the Applicant
canvassed that M/s Syngenta India Limited is a registered Company under the
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provisions of the Indian Companies Act, 1956. The Applicant/Accused is one of
the Directors of the said company. Though there are other Directors but they
are not impleaded as accused. The Company manufactures commodities,
which has been seized by the complaint, however, the Company, who is juristic
person is not impleaded as party accused. Therefore, the complaint is not
maintainable against the present Applicant alone for the offence committed by
the Company. Therefore, the complaint lodged by the Respondent is not
maintainable, hence, it needs to be quashed.
6. The learned counsel for the Applicant further canvassed that
Section 49 of the Legal Metrology Act, 2009 provides for offences by the
Companies and power of Court to publish the name, place of business etc., for
conviction of the Company, but the Company is not impleaded as an Accused.
Further, in complaint no averment has been made as to how the present
Applicant is responsible for business, production of the Company as well as
packaging of it's product/commodities. The Complainant has also not made
any averment regarding the specific role played by the Applicant while
packaging the commodities. Therefore, the sole Applicant as a Director of the
Company is not liable for prosecution for the offence committed by the
Company, hence, prayed for quashing and setting aside the complaint.
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7. To buttress these submissions, the learned counsel for the
Applicant placed reliance on the following judicial pronouncements which are
as under:
a. Judgment dated 07.11.2017 passed in Cri. Appln. 2899 of 2017 in case
of Mr. Rohit Gothi Vs. State.
b. 2018 ALL M. R. Cri. 465 (SC) Managing Director, M/s Castrol India Ltd.,
Vs. State of Karnataka,
c. Judgment dated 03-10-2022 delivered in Cri. Appln. No. 829 of 2015 in
case of Dr. Vijaypat Singhania and others Vs. State,
d. 2018 (1) FAC 401; Rajeev Tandan & others Vs. State
e. 2018 (1) FAC 1; Yum Restaurant India Pvt. Ltd. & Ors.Vs. State of
Maharashtra.
f. 2007 ALL M.R. Cri. 3050; Shantanu Sinha Vs. State.
8. Per contra, Mr. V. M. Jaware the learned APP canvassed in
vehemence that, on 9th July, 2018, Mr. P. P. Vibhandik, the Inspector Legal
Metrology Department had visited the premises of M/s. Paras Krishi Kendra
situated at Pachora and during the course of inspection at the said
establishment, he noticed packages of brand "Gramoxone" kept for sale
manufactured by M/s. Syngenta India Limited, an Industrial establishment of
which the present Applicant is a Director. The Complainant found that the
Accused has not maintained the height of numeral in the declaration as
required, which is an offence under Section 18 of the Legal Metrology Act,
2009 read with Rule 7 (2). Since, the complainant complied with all the
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necessary requirements and drawn panchanama in presence of the witness.
Therefore, a complaint has been lodged against the Applicant/Accused because
the Applicant is a Director of said Industrial Establishment and manufactured
the commodities. Therefore, the accused is prima facie guilty for the offence
punishable under Section 18 read with Rule 7(2) of the Legal Metrology Act,
2009. Accordingly, on 8th July, 2019, the learned Magistrate passed an order
and issued the summons against the present Applicant. Therefore, the
Application under Section 482 of the Code of Criminal Procedure, 1973 is not
maintainable as it is an interlocutory order, hence, prayed for dismissal of the
Application.
9. In support of these submissions, the learned APP relied on the case
of Om Kr. Dhankar Vs. State of Haryana & Anr.; 2012 AIR SCW 1821, wherein
the Hon'ble Supreme Court of India has held that an order directing the
issuance of process is purely an interlocutory order and therefore, the bar
under Sub-Section (2) of Section 397 would apply. On the other hand, it must
be held to be intermediate or quasi-final and therefore, the revisional
jurisdiction under Section 397 would be exercised against the same.
10. The learned APP further relied on the case of Amar Nath and
others Vs. State of Haryana and Ors.; AIR 1977 SC 2185, wherein it is held that
where a revision to the High Court against the order of the Subordinate Judge
(6) cri apln 4193.19
is expressly barred under Sub-Section (2) of Section 397 of the Code, 1973, the
inherent powers contained in Section 482 would not be available to defeat the
bar contained in Sub-Section 2 of Section 397. Section 482 of the Code, 1973
contains the inherent powers of the Court and does not confer any new powers,
but preserves the powers High Court already possessed. A harmonious
construction of Sections 397 and 482 would lead to the irresistible conclusion
that where a particular order is expressly barred under Section 397 (2) and
cannot be the subject of revision by the High Court, then in such cases the
provisions of Section 482 would not apply. It is well settled that the inherent
powers of the Court can ordinarily be exercised when there is no express
provisions on the subject matter but when there is an express provision, barring
a particular remedy, the Court cannot resort to exercise the inherent powers.
11. Coming to the instant case, the Applicant has approached this
Court under Section 482 of Code of Criminal Procedure, 1973 seeking quashing
of Criminal Complaint SCC No. 25 of 2019 pending on the file of Judicial
Magistrate First Class, Pachora, Dist. Jalgaon. Therefore, the Applicant has no
other remedy other than Section 482 of the Code of 1973. The Applicant has
not challenged the order of issuance of summons passed below Exh.1 on
08.07.2019 in SCC No. 25 of 2019, therefore, though the said order can be
revisioned but the remedy under Section 482 of Code of 1973 is not a bar to
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approach this Court. Therefore, the submissions canvassed on behalf of the
learned APP is not acceptable to my judicial conscious.
12. It is not in dispute that the Applicant is one of the Directors of M/s.
Syngenta India Limited, registered under the provisions of the Indian
Companies Act. Therefore, the Company is the legal person. It is a matter of
record that the Complainant- Mr. P .P. Vibhandik, the Inspector Legal Metrology
Department visited the premises of M/s. Paras Krishi Kendra at Pachora on 9 th
July, 2018, and during the course of inspection of the said establishment he
noticed the packaged brand of "Gramoxone" kept for sale. Said commodities
are manufactured by M/s. Syngenta India Limited. The Complainant found
that the manufacturer has not maintained the height of numeral in the
declaration as required, which constitutes an offence under Section 18 of the
Legal Metrology Act, 2009 read with Rule 7 (2), hence, he has instituted a
complaint before the Judicial Magistrate F.C, Pachora. Accordingly, on 8 th July,
2019, the learned Magistrate issued the summons against the
Applicant/Accused.
13. Section 49 of the Legal Metrology Act, 2009 deals with the
offences by companies and power of Court to publish name, place of business,
etc., for companies convicted. Sub-Section 1 (a) and (b) of Section 49 reads as
under:
(8) cri apln 4193.19
"(1) Where an offence under this Act has been committed by a company,--
(a) (i) the person, if any, who has been nominated under sub-section (2) to
be in charge of, and responsible to, the company for the conduct of the
business of the company (hereinafter in this section referred to as a person
responsible); or
(ii) where no person has been nominated, 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; and
(b) 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 such
person liable to any punishment provided in this Act if he proves that the
offence was committed without his knowledge and that he exercised all
due diligence to prevent the commission of such offence."
14. Rule 18 of Legal Metrology (packaged Commodities) Rules, 2011
reads as under:
"18. Provisions relating to wholesale dealer and retail dealers.-
(1) No wholesale dealer or retail dealer or importer shall sell, distribute,
deliver, display or store for sale any commodity in the packaged form
unless the package complies with in all respects, the provisions of the Act
and these rules.
(2) No retail dealer or other person including manufacturer, packer,
importer and wholesale dealer shall make any sale of any commodity in
packed form at a price exceeding the retail sale price thereof.
(3) Where, after any commodity has been pre-packed for sale, any tax
payable in relation to such commodity is revised, the retail dealer or any
other person shall not make any retail sale of such commodity at a price
exceeding the revised retail sale price, communicated to him by the
manufacturer, or where the manufacturer is not the packer, the packer, and
it shall be, the duty of the manufacturer or packer as the case may be, to
indicate by not less than two advertisements in one or more newspapers
and also by circulation of notices to the dealers and to the Director in the
Central Government and Controllers of Legal Metrology in the States and
Union Territories, the revised prices of such packages but the difference
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between the price marked on the package and the revised price shall not,
in any case, be higher than the extent of increase in the tax or in the case
of imposition of fresh tax higher than the fresh tax so imposed:
Provided that publication in any newspaper, of such revised price
shall not be necessary where such revision is due to any increase in, or
imposition or, any tax payable under any law made by the State
Legislation:
Provided further that the retail dealer or other person, shall not
charge such revised prices in relation to any packages except those
packages which bear marking indicating that they were pre-packed in the
month in which such tax has been revised or fresh tax has been imposed
or in the month immediately following the month aforesaid;
Provided also that where the revised prices are lower than the price
marked on the package, the retail dealer or other person shall not charge
any price in excess of the revised price, irrespective of the month in
which the commodity was pre-packed.
(4) Nothing in sub-rule (3) shall apply to a package which is not
required,under these rules to indicate the month and the year in which it
was pre-packed.
(5) No wholesale dealer or retail dealer or other person shall obliterate,
smudge or alter the retail sale price, indicated by the manufacturer or the
packer or the importer, as the case may be, on the package or on the
label affixed thereto.
(6) The manufacturer or packer or the importer shall not alter the price on
the wrapper once printed and used for packing.
(7) All retailers who are covered under the Value Added Tax VAT or
Turn Over Tax (TOT) and dealing in packaged commodities whose net
content declaration is by weight or volume or a combination thereof
shall maintain a electronic weighing machine of at least accuracy class
III, with smallest division of at least 1 g, with facility to issue a printed
receipt indicating among other things, the gross quantity, price and the
like at a prominent place in their retail premises, free of cost, for the
benefit of consumers and the consumers may check the weight of their
packaged commodities purchased from the shop on such machine."
( 10 ) cri apln 4193.19
15. In the case of Managing Director, M/s Castrol India Ltd., (supra),
the Hon'ble Supreme Court of India has held that to determine vicarious
liability of Officer of Company, clear and categorical statement that he was
Incharge of the conduct of business of company in respect of which an offence
is alleged to have been committed, is required to be made. If no such statement
or averment is made in the complaint that the M.D. was responsible for conduct
of business of the company or for commission of any act on the basis of which
an offence is alleged to have been committed, the proceeding against the M.D.
of Company is liable to be quashed.
16. In case of Mr. Rohit Gothi Vs. State (Cri. Appln. 2899 of 2017), the
Co-ordinate Bench of this Court by Judgment dated 07.11.2017 has held that
combine reading of Clauses-A and B of Section 49 of the Act, it is very clear
that when the offence is committed by the Company, then the nominated
person and the Company both are liable to be prosecuted. The vicarious
liability of a nominated person would arise only when the Company is also
made an accused. The nominated Director is impleaded as an accused in the
event Company commits offence, he being Incharge and responsible to the
Company for the conduct of the business of the Company.
17. In the case of Dr. Vijaypat Singhania and others Vs. State (Cri.
Appln. No. 829 of 2015), the Co-ordinate Bench of this Court by it's Judgment
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dated 03.10.2022 has considered the cases of Yum Restaurants (India Pvt. V/s.
The State of Maharashtra; 2018 (1) FAC91, Rajiv Kashinarayan Tandon & Ors.
V/s. The State of Maharashtra; 2018 (1) FAC 401, TVS Motors Company and
Ors. V/s. The State of Maharashtra; 2015 (1) FAC 432, Managing Director of
M/s Castrol India Ltd.; 2018 ALL M. R. Cri. 465 (SC) and case of Sunil Bharti
Mittal V/s. Central Bureau of Investigation; (2015) 4 SCC 609 and held that in
absence of averment in respect of role and responsibility of the Directors, in
such cases the prosecution against the Directors is not warranted.
18. Similarly, in the case in hand, it prima facie appears that the
Respondent/Complainant neither impleaded the Company who manufactured
the commodities nor impleaded all the Directors of the Company as an accused.
Nonetheless, there is no averment as to how the present Applicant is
responsible for the business and production of the Company as well as
packaging of it's product/commodities. No any specific role is attributed to the
present Applicant while packaging the commodities, which is subject matter of
the complaint. Therefore, the sole Applicant as a Director of the Company is
not liable for the prosecution for offence committed by the Company and no
prosecution as against the present Applicant can be continued. Therefore, the
Criminal Complaint bearing SCC No. 25 of 2019 pending on the file of Judicial
Magistrate First Class, Pachora Dist. Jalgaon is required to be set aside. In view
of above discussion, I proceed to pass the following order:
( 12 ) cri apln 4193.19
: ORDER :
I. Criminal Application No. 4193 of 2019 is allowed.
II. Criminal Complaint bearing SCC No. 25 of 2019 pending on the file of
Judicial Magistrate First Class, Pachora Dist. Jalgaon is hereby quashed
and set aside in its entirety. Consequently, the order dated 08.07.2019
passed by the learned Judicial Magistrate First Class, Pachora Dist.
Jalgaon is also quashed and set aside.
III. Accordingly, Rule is made absolute in the above terms.
[Y.G. KHOBRAGADE, J.]
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