Bombay High Court
Anil Agrawal And Ors vs The State Of Mah on 23 September, 2024
2024:BHC-AUG:22355
1 CrAn-344-10.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.344 OF 2010
1. Anil Agrawal
Director of M/s. Bunge Agri
Business, India Ltd. Housefin
Bhavan Suit No.701, Bandra
Kurla complex, Bandra (E),
Mumbai 400 051
2. Siddhant Khosla,
Director of M/s. Bunge Agri
Business India Ltd. Housefin
Bhavan Suit No.701, Bandra
Kurla complex, Bandra (E),
Mumbai 400 051
3. Sudhakar Desai,
Director of M/s. Bunge Agri
Business India Ltd. Housefin
Bhavan Suit No.701, Bandra
Kurla complex, Bandra (E),
Mumbai 400 051
4. M/s. Bunge Agri Business India Ltd.,
Housefin Bhavan Suit No.701,
Bandra Kurla complex, Bandra (E),
Mumbai 400 051 .. Applicants
(Original Accused
No.7 to 10)
Versus
State of Maharashtra at the instance of Food
Inspector Shri. Tuljadas Chandidarrao Boralkar
Food Inspector, office of Joint Commissioner of
Food and Drug Administration (MS) Latur .. Respondent
(Original Complainant)
Mr. D. S. Bagul, Advocate for Applicants;
Ms. Vaishali S. Choudhari, A.P.P. for Respondent
CORAM : S. G. MEHARE, J.
Reserved on: 22-08-2024
Pronounced on: 23-09-2024
2 CrAn-344-10.odt
JUDGMENT:
-
1. The applicants have filed present application under Section
482 of the Code of Criminal Procedure and Article 227 of the
Constitution of India for quashing and setting aside the
prosecution/complaint of the respondent against the applicants
and the process issued by the Court for an offence under Section
7(1) read with Sections 2(ia) and 2(ia)(m) punishable under
Sections 16 and 17 of the Prevention of Food Adulteration Act,
1954 (for short, "the Act").
2. The applicants are the Directors of the Company. M/s Bunge
Agri Business India Ltd is engaged in the manufacturing of
vanaspati, margarine, butter, etc. The company is duly registered
under the Companies Act.
3. The learned counsel for the applicants argued that there
were no averments in the Complaint that the applicants were in
charge and responsible for the business of the company. In the
absence of such averment or evidence as required under Section
17 of the Act, no vicarious liability could be fastened on the
Directors. Section 17 of the Act provides that when the offence is
committed by the company, only the person in charge and
responsible for the business of the company can be prosecuted.
Nothing was there before the learned Judicial Magistrate First
Class, Udgir, showing that the applicants were in charge and
3 CrAn-344-10.odt
responsible for the business of the company. Hence, the process
issued against them is prima facie illegal.
4. It was further argued that in this case, the samples were
drawn on 31.05.2004 and were analyzed on 15.07.2004. The Local
Health Authority, on 13.08.2004, directed the Food Inspector to
take an action against the concerned. The Complaint was filed in
the Court thirty-five months after taking the samples and thirty-
three months after the date of analysis. Therefore, the applicants
could not get opportunity to send the samples to the Central Food
Laboratory for reanalysis. It was not a ritual formality but a
statutory requirement of law. They may exercise their right if the
seized samples were in a fit condition for analysis. The applicants
have lost the right to get the sample reanalyzed from the Central
Food Laboratory. Hence, they are entitled to claim that prejudice
has been caused to them.
5. In short, he argued that when the rights were accrued, the
samples were not fit for analysis. Therefore, they have lost their
valuable rights to disapprove the allegations. Inordinate delay in
lodging the Complaint resulted in failure to keep the samples fit for
chemical analysis at the instance of the accused as provided under
Section 13(2) of the Act. In the circumstances, the petition became
infructuous. The impugned order was passed mechanically and
without application of mind. Since the legal right of the applicants
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under Section 13(2) of the Act has been violated, it would be futile
to go for the trial.
6. Per contra, the learned A.P.P. for the State argued that the
complainant has specifically averred about the role attributed to
the applicants in the Complaint. The applicants were
manufacturers. The Food Inspector, on the same day served the
relevant papers of action upon the seller of the samples. The
notice under Section 11(1)(a) of the Act was sent to the Sales
Department of the Company immediately on 29.12.2004. The
analysis report was received on 15.07.2004. The accused supplied
the names of the responsible officers belatedly. Therefore, the
sanction to prosecute the applicants was delayed. However, the
analysis was done diligently. Some delay was caused in obtaining
the sanction. Therefore, the Complaint was delayed. The
Directors are presumed to be responsible for the business unless a
person responsible for day-to-day business is nominated. The
application deserves no merit. Hence, it is liable to be dismissed.
7. Let us deal with the issue of who is responsible for the
offence committed in this case.
8. Section 17 of the Act speaks of the offences by companies.
Sub-section (1) of Section 17 of the Act is 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
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charge of, and responsible to the company for the conduct of the
business of the company (hereafter in this section referred to as
the person responsible), or (ii) where no person has been so
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. It has
been 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.
9. Sub-section (2) of Section 17 of the Act further provides that
any company may, by order in writing, authorize any of its
directors or managers (such manager being employed mainly in a
managerial or supervisory capacity) to exercise all such powers
and take all such steps as may be necessary or expedient to
prevent the commission by the company of any offence under this
Act and may give notice to the Local (Health) Authority, in such
form and in such manner as may be prescribed, that it has
nominated such director or manager as the person responsible,
alongwith the written consent of such director or manager for
being so nominated.
6 CrAn-344-10.odt
10. Explanation to the above sub-section is where a company
has different establishments or branches or different units in any
establishment or branch, different persons may be nominated
under this sub-section in relation to different establishments or
branches or units, and the person nominated in relation to any
establishment, branch or unit shall be deemed to be the person
responsible in respect of such establishment, branch or unit.
11. Sub-Section (3) of Section 17 of the Act provides that the
person nominated under sub-section (2) shall, until- (i) further
notice cancelling such nomination is received from the company
by the Local (Health) Authority; or (ii) he ceases to be a director or,
as the case may be, manager of the company; or (iii) he makes a
request in writing to the Local (Health) Authority, under intimation
to the company, to cancel the nomination [which request shall be
complied with by the Local (Health) Authority], whichever is the
earliest, continue to be the person responsible. It is provided that
where such person ceases to be a director or, as the case may be,
manager of the company, he shall intimate the fact of such cesser
to the Local (Health) Authority. It is further provided that where
such person makes a request under clause (iii), the Local (Health)
Authority shall not cancel such nomination with effect from a date
earlier than the date on which the request is made.
12. The above provision says that there shall be no cancellation
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of such nomination with retrospective effect. It is implicit that
unless the company or person, if any, who has been nominated
under Sub-Section (2) to be in charge of and responsible to, the
company is deemed guilty of the offences and liable to be
prosecuted under this Act.
13. The burden is on the applicants to place the material before
the Court that Section 17(1)(a)(i) of the Act has been complied
with. In the absence of any material as such, it is presumed that
the company did not nominate a Director or Manager to be in
charge of and responsible to the conduct of the business of the
company. Therefore, at this juncture, it could not be accepted that
the applicants, being the Directors of the Company, were not
responsible for the conduct of the business of the company and
they were not liable to be prosecuted.
14. The question has been raised since there was an inordinate
delay in making an opportunity available to the applicants for the
seized sample to the Central Food Laboratory, there would be no
fair trial, and the Complaint would be infructuous. Even if seized
samples were sent to the Central Chemical Laboratory, it would be
a futile attempt because the sample so seized could not be
appropriately analyzed, and could not give proper results as the
shelf life of the seized product has already been over. The
prosecution failed to comply with Section 13(2) of the Act.
8 CrAn-344-10.odt
15. The averments of the Complaint were that the then Food
Inspector, along with others, visited the manufacturing unit at
Udgir with one Shaikh Mahammad Faiyajoddin s/o Nasruddin on
31.05.2004 and one Kohinoor Food Products of Sk. Abdul Samad
Makbool Sahab (accused No.1) was looking after the sales
management of the food products. The Food Inspector purchased
600 Grams Flakier and Testier Puffs, Lilly Margrin 15 kg pack and
1500 grams Fine Wheat Flour from unlebelled open gunny bags.
He paid money for those products and obtained the receipt. He
immediately issued notice to the seller in form No.VI prescribed
under Section 14A of the Act. Thereafter, the Food Inspector, as
per the provisions, divided the samples into three parts, filled
them in the bottle, labelled it and obtained the signature of the
persons present. On 01.06.2004, he sent the samples to the Food
Analyzer, State Health Laboratory, Pune. He received analysis
report on 15.07.2004. The analysis report was that the sample
bearing L(H)A code No. ABD/LTR & Serial No.0150 does not
conform to the standard of Table Margarine as per PFA Rules, 1955.
On 31.05.2004, he asked accused No.1 to produce the details of
the licensee.
16. Section 11 of the Act provides for the procedure to be
followed by the Food Inspectors. Soon after taking the sample of
food for analysis, the Food Inspectors shall give a notice in writing
and make his intention clear that the samples collected are to be
9 CrAn-344-10.odt
analyzed. The notice should be given to the person from whom he
has taken the sample and to the person, if any, whose name,
address, and other particulars have been disclosed under section
14A.
17. Section 11 of the Act was amended w.e.f. 1.4.1976. Proviso
clause (1) of Section 11 of the Act is that if an application is made
to the Magistrate, in this behalf by the person from whom any
article of food has been seized, the Magistrate shall by order in
writing direct the food inspector to produce such article before him
within such time as may be specified in the order.
18. Section 13(2) of the Act provides that on receipt of the report
of the result of the analysis under sub-section (1) to the effect that
the article of food is adulterated, the Local (Health) Authority shall,
after the institution of prosecution against the person from whom
the sample of the article of food was taken, and the person, if any,
whose name, address and other particulars have been disclosed
under section 14A, forward, in such manner as may be prescribed,
a copy of the report of the result of the analysis to such person or
persons, as the case may be, informing such person or persons
that if it is so desired, either or both of them may make an
application to the Court within ten days from the date of receipt of
the copy of the report to get the sample of the article of food kept
by the Local (Health) Authority analyzed by the Central Food
10 CrAn-344-10.odt
Laboratory.
19. The record reveals that after receiving the analysis report,
the Local (Health) Authority sent the report to the Food Inspector,
Latur, for further action. It was a letter dated 13.08.2004. The
Complaint was filed on 11.05.2007. The record and proceeding of
the trial Court, particularly the roznama shows that on 15.05.2007,
the Local Health Officer intimated the applicants under Section
13(2) of the Act. Applicant No.3 - Sudhakar Desai appeared before
the Court on 27.10.2009, and Applicants No.1 Anil Agrawal and
No.2 Siddhant Khosla appeared in the Court on 22.03.2010.
20. The record did not show that either of the applicants applied
to the Magistrate within ten days from the receipt of the copy of
the report, as the Local (Health) Authority intimated them to send
the sample to the Central Food Laboratory for further analysis. It is
apparent that the applicants did not exercise their right as
provided under Sub-Section (2) of Section 13 of the Act. Instead of
exercising their right from the date of appearance within the time
prescribed, they immediately rushed to this Court by filing the
petition under Section 482 of the Cr.P.C.There was no delay on the
part of the Food Inspector in sending the samples to the State
Food Laboratory. The delay was caused in filing the complaint
because much time was spent in supplying the information of the
directors and other persons responsible for the business of the
Company.
11 CrAn-344-10.odt
21. To bolster the arguments on "Best Before Use", question the
learned counsel for the applicants relied on the case Marico Ltd.
And Ors. Vs. State of Delhi and Ors. Crl.M.C.No.1218 of
2011, decided on 27.01.2015, MANU/DE/0275/2015, the facts
of the case were that the applicant was the manufacturer of the
product Blended Edible Vegetable Oil. The sample of his
manufacturing product was taken. An adverse report of public
analysis was received. The complaint was filed after ten months
after receipt of the report and on the same day, summons were
issued. Notice under Section 13(2) of the Act was issued on 17 th
March, 2011 to the applicant company to get the sample
reanalyzed by the Central Food Laboratory where the sampled
product with 9 months shelf-life became 7 months beyond the best
before date/use. Under this premise, the Delhi High Court held that
delay of 10 months in initiating the prosecution after the receipt of
the report of the Public Analyst by the L.H.A., the inordinate delay
is fatal to the case of the prosecution. Therefore, the right of the
applicant company to get the sample of the product reanalyzed is
vitiated. In this case, the facts before the Court were that shelf-life
of the product was 9 months. Under this premise, the Court held
that the right of the petitioner company to get samples of the
produce reanalyzed is vitiated.
22. The facts of Marico Ltd. (supra), were that the it was
mentioned on the product that "Best Before Nine Months from
12 CrAn-344-10.odt
Packaging" as per the requirements of PFA Rules. In the said case,
the case of Shri Rohit Mull v. State of Goa,
MANU/MH/1090/2005 : 2006 (1) fac 58 was considered with
approval by a Division Bench in Shivkumar v. State of
Maharashtra (supra), the Court had reproduced the
observations made in case of Shri Rohit Mull (supra), which
reads thus;
"6. ...'Best Before Date' shown on the label is in terms of
Rule 32(i) of the Prevention of Food Adulteration Rules,
1955 and in terms of Explanation VII below the said Rule
it means the date which signifies the end of the period
under any stated storage conditions during which the
product will remain fully marketable and will retain any
specific qualities for which tacit or express claims have
been made. The explanation also states that however,
provided that beyond the date the food may still be
perfectly satisfactorily.
....
15. By now there is unanimity of judicial opinion that
when a valuable right is lost to the accused to get the
sample reanalysed from the Director, Central Food
Laboratory, he can very well claim that prejudice has
been caused to him and this is because the report of the
Director, Central Food Laboratory, supersedes that of the
Public Analyst. Section 13(2) of the Act confers a
valuable right on the seller of the article of food to get
the sample analysed by the Central Food Laboratory, and
while it is in a condition fit for such analysis and in our
13 CrAn-344-10.odt
case that would be on or before the 'Best Before
Date'. .. ....
21. ...... As already noted in the case of the two of the
purchases the notice given to the petitioners/accused
was given much after the 'Best Before Date' and in cases
of the third purchase, the notice was given just before
two days of the said 'Best Before Date' thereby making it
impossible for the Petitioners, even if they were
stationed in this State, to exercise the said right of
making an application to the Court concerned to get the
sample of the article of food kept by the Local Health
Authority analysed by the Central Food Laboratory. Even
if the petitioners had made such an application
immediately after receiving the said report of the Public
Analyst, it would have been impossible for the petitioners
to have exercised the said right given to them in such a
short period. In other words, the Complainants made it
impossible for the accused to exercise the right under
Subsection 2 of Section 13 of the Act. In such a situation
no conviction against the accused would be possible and
therefore no useful purpose would be served by
continuing with the prosecutions under Sections 7/16 of
the Act."
23. In the case of State of Haryana v. Brij Lal Mittal, AIR
1998 SC 2327, there was a delay in filing a Complaint till the
expiry of the shelf life of drugs, hence, it was held that it cannot be
treated as a ground to quash the prosecution. However, the case is
not only distinguishable on facts but also on law. In that case,
manufacturers' right, under sub-Section (4) of Section 25 of the
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Drugs and Cosmetics Act, 1940, to get the sample tested by the
Central Drugs Laboratory had expired four months before the
expiry of the shelf life upon their failure to notify intention, in
accordance with sub-section (3), to adduce evidence in
controversion of report of Government Analyst within the
prescribed period of twenty-eight days from the receipt of the copy
thereof.
24. Chapter VII of the Prevention of Food Adulteration Rules,
1955 (for short, "Rules of 1955"), has a title, "Packing and
Labelling of Foods". Clause (f) of Rule 32(2) first proviso provides
for the month and year of manufacturing/packing or preparing
shall be given if the "Best Before Date" of the product is more than
three months. It has further provided that in case of any package
containing a commodity which has a short shelf life of less than
three months, the date, month and year in which the commodity is
manufactured or prepared or prepacked shall be mentioned on the
label. Clause (i) is about the samples of the letters to be printed or
displayed with a clear indication about the best for consumption.
The proviso of clause (i) is that in the case of wholesale packages
the particulars under clauses (b), (f), (g), (h) and this clause need
not be specified.
25. The applicants have no case or material to satisfy the Court
that the sample seized from the package and gunny bag indicated
15 CrAn-344-10.odt
the date of manufacturer/packing or the "Best Before Date".The
Complaint is also silent about it. Therefore, for want of the material
before the Court, at this juncture, it would be difficult to accept
that since the shelf life of the product has been expired, sending
the samples deposited with Local Health Authority to the Central
Chemical Laboratory is a futile attempt.
26. It is implicit that the applicants did not exercise their right to
apply to the Court for sending the samples deposited with the
Local Health Authority within ten days of the receipt issued by him.
The conduct of the applicants made it apparent that they knew the
provisions of the law and the effects of delaying the analysis of the
samples from the Central Food Laboratory. A court summons is not
necessary to exercise the rights under Section 13(2) of the Act.
Such notice itself was the intimation of filing the Complaint.
However, instead of appearing in the Court after the notice as
mentioned above was served, they waited till the Court summons
were served upon them.
27. Reading the law in the context of the rights of applicants to
get the samples analyzed from the Central Food Laboratory, it was
the duty of the accused/applicants to exercise their rights first
within the time prescribed by the law. They cannot blame the
authorities for their fault. In view of the facts, herein the case, the
ratio laid in State of Haryana v. Brij Lal Mittal (supra) applies.
16 CrAn-344-10.odt
28. Prima facie, the contents of the Complaint reveal that the
complainant has followed the due procedure of law and sufficient
to take cognizance. A prima facie case is made out against the
applicants.
29. For the above reasons, the Court is not satisfied that it is a fit
case to exercise the power under Section 482 of the Code of
Criminal Procedure. Hence, the criminal application stands
dismissed.
( S. G. MEHARE )
JUDGE
rrd
