Union Of India vs S.P. Aggarwal And Anr.
1990 Latest Caselaw 74 Del

JUDGMENT

P.K. Bahri, J.

(1) Vide impugned order dated May 28, 1980, a Metropolitan Magistrate, New Delhi, has discharged respondent No. 1-S.P. Aggarwal while he has directed the framing of charges against M.C. Arora, Manager of the hotel from whom the sample was taken which was found to be adulterated and against Aggarwal Hotels Limited which owns the Alka Hotel from where the sample of the curd was lifted. The Union of India has preferred this petition for setting aside the order the Metropolitan Magistrate by which Shri S.P. Aggarwal has been discharged.

(2) The learned Metropolitan Magistrate has given the finding that no sufficient evidence has been led by the Union of India to prove that S.P. Aggarwal though a Managing Director of the said company was, in fact, in charge of and was responsible to the company for the conduct of the business of the company at the time the sample was lifted.

(3) In the complaint it was mentioned that M.C. Arora, from whom the sample was taken, had described S.P. Aggarwal as the Managing partner of M/s. Alka Hotel and Restaurant. No other fact was mentioned in the complaint to show that S.P. Aggarwal was in charge of and responsible for conduct of the business of the said; restaurant. Later on, in evidence it came out that Alka Hotel and Restaurant was the business being run by Aggarwal Hotels Private Limited Company of which S.P. Aggarwal is the Managing Director. In pre-charge evidence, Food Inspector PW3 M.K. Bhan has deposed that before M.C. Arora had given the sample he had given a ring to S.P. Aggarwal and S.P. Aggarwal also talked with the Food Inspector and he permitted Shri Arora to give the sample. However, this particular testimony of M.K.. Bhan, on the face of it, would not have been sufficient to show that, in fact, S.P. Aggarwal, though Managing Director of the company, was in charge of responsible to the company for the conduct of the business of the company being run in the Alka Hotel and Restaurant. The learned Metropolitan Magistrate only referred to this part of the evidence and thus, concluded that in absence of any evidence to show that S.P. Aggarwal was in charge of and responsible to the company for the conduct of the business at the time the sample was lifted, no charge could be framed against S.P. Aggarwal under Section 17 of the Prevention of Food Adulteration Act as it existed before amendment of the said Act.

(4) It is pertinent to mention that the Union of India had examined PW4, a Clerk from the office of the Shop and Establishment, who proved on record application Ex.PW4/A signed by S.P. Aggarwal dated July 28,1979, in which S.P. Aggarwal has been shown as 'occupier' of the said Alka Restaurant. The witness also deposed that no change in the name of occupier has occurred .afterwards meaning thereby that on the day January 23, 1973, when the sample was lifted S.P. Aggarwal was shown in the official record as 'occupier' under the provisions of the Delhi Shops and Establishments Act, 1954. This piece of evidence has not been taken into consideration by the learned Metropolitan Magistrate.

(5) Counsel for the petitioner has drawn my attention to the definition of'occupier'given in Section 2(17) of the said Act which means a person owing or having charge or control of the establishment............It has been argued by the learned counsel for the petitioner that if this definition of 'occupier' is kept in view and the evidence remains unrebutted by respondent No. 1-S.P. Aggarwal, an irresistible conclusion can be reached that S.P. Aggarwal was in charge of the business of Alka Restaurant as he has shown himself as occupier in the, record of the Shop and Establishment office, of the said Alka Restaurant.

(6) The learned counsel for the respondent, Mr. Dinesh Mathur, however, on the other hand, has vehemently argued that there is no evidence produced on the record to show that at the time the sample was lifted, Shri S.P. Aggarwal was in charge of the said business of Alka Restaurant. He has further contended that the entry made in view of the provisions of the Delhi Shops and Establishments Act in the record'of the said office by itself is not sufficient to show that S.P. Aggarwal was in charge of the business of Alka Restaurant on the day the sample was lifted as the said entry was made many years prior to the lifting of the sample. He has made reference to certain case law which I now presently notice.

(7) The first case referred by the learned counsel for the respondent is- of Smt. Manibai & another v. State of Maharashtra, 1973 F.A.C. 349, wherein it has been held that mere fact that a particular person is the licensee of the shop would not be sufficient to warrant the conviction for offence under the Food Adulteration Act unless it is shown that the said person has been in charge of and was responsible for the conduct of the business which was being carried on at the place from where the sample was lifted. This judgment is distinguishable on facts. S.P. Aggarwal .is not shown as mere licensee. He has been shown as 'occupier' within the meaning given to that particular word under the Delhi Shops and Establishments Act meaning thereby that he was the in charge of the business being run in Alka Restaurant.

(8) Then, reference has been made to Chandra Prakash & another v. State, 1979 (l)F.A.C. 183, where a Single Judge of Allahabad High Court also held that mere fact that a license is in the name of a particular person and there being no evidence to show that the said person was in charge of and responsible for the conduct of the business, the offence cannot be brought home to such person. This judgment is also distinguishable on facts; rather this judgment has followed the Supreme Court in case of the Manibai (supra).

(9) Counsel for the respondent S.P. Aggarwal has then cited Municipal Corporation of Delhi v. Roshan Lal, 1984 (1) F.A.C. 163, wherein a Division Bench of this Court has held that mere fact that the accused is a partner of a particular firm would not be sufficient to show that he is in charge of and responsible to the firm for the conduct of the business of the firm. There is no dispute about the proposition law laid down in this judgment.

(10) Lastly, he has referred to Municipal Corporation of Delhi v. S.K. Jain & Others, 1984 (2) F.A.C. 289, wherein a Division Bench of this Court has held that it must be proved by the prosecution that a person not only has been in charge of and responsible to the company for the conduct of the business but it must be also proved that he was so at the point of time when the sample was lifted.

(11) It is, no doubt, quite clear that in law unless and until it is shown that S.P. Aggarwal, though he was the Managing Director, was in charge of and responsible to the company for the conduct of the business at the time the sample was lifted, no charge could be framed against him. In Ramchandra Somchand Patel v. P.S. Medora & Others, 1986 (1) F.A.C. 124; the facts were that the accused who had been acquitted was the Managing Director but he was not carrying out the day-to-day management of the business and he was doing only general supervision as a Managing Director. It was held that acquittal of the said Managing Director was well based as it is not proved that he was carrying on the management of day-to-day business of the firm. The Supreme Court in the case of State of Maharashtra v. Baburao Ravaji Mharulkar & Others, 1984 (2) F.A.C. 265, has again reiterated the same law that unless and until it is proved that the partners of the firm were in charge of and responsible to the firm for the conduct of the business they cannot be convicted by taking resort to Section 17 of the Prevention of Food Adulteration Act. It is also laid down by the Supreme Court in Kishan Trimbak Kothula & Others v. State of Maharashtra, that it is not necessary that the partner who is proved to be in charge of and responsible to the firm for the conduct of the business was absent at the time the sample was lifted. The vicarious liability of the partner or the Managing Director comes into play if evidence is led to prove that he was In charge of and responsible for the conduct of the business at the time the sample was lifted. So, even though S.P. Aggarwal was not present at the Restaurant when the sample was lifted, still he could be charged for the offence under the said Act by resort to Section 17 of the said Act if the evidence could show which remains unrebutted, that he was in charge of and responsible for the conduct of the business.

(12) The learned counsel for the respondent-S.P. Aggarwal has vehemently contended that the provisions of the Delhi Shops and Establishments Act cannot be invoked for bringing home the offence of respondent under the Prevention of Food Adulteration Act. There is a fallacy in this argument It is true that the Delhi Shops and Establishments Act has been brought into existence for consolidating the law relating to the regulation of hours of work, payment of wages, leaves, holidays, terms of service and other conditions of work of the employees in the shops and establishments but the court cannot lose sight of the definition of 'occupier' given in Section 2(17) of the Delhi Shops and Establishments Act in order to see whether such an occupier of a particular commercial establishment can be deemed to be in charge of and responsible for the conduct of the business of the said firm. The provisions of the Delhi Shops and Establishments Act are not being taken resort to for any other purpose except to show that S.P. Aggarwal, who had himself shown in the official records as occupier of Alka Restaurant, could be deemed to be in charge of and responsible for conduct of the business of Alka Restaurant. In my view, till there is brought any evidence in rebuttal by S.P. Aggarwal that he was not looking after the day-to-day business of the said Restaurant, an inference has to be drawn that being an occupier as understood under Section 2(17) of the Delhi Shops and Establishment Act, S.P. Aggarwal was in charge of the said business being run in the said Restaurant and as there is nothing to show that any other person had been nominated as occupier he continues to hold the said position till the sample was lifted and even till-date the evidence was led before the Metropolitan Magistrate. Hence, I hold that the learned Metropolitan Magistrate has committed grave illegality in discharging S.P. Aggarwal inasmuch as he failed to notice the important piece of evidence in shape of application given under the Delhi Shops and Establishments Act showing S.P. Aggarwal as occupier of Alka Restaurant.

(13) The learned counsel for the respondent has raised another legal question that in the present case no proper proof has been led to show that the consent of the appropriate authority had been obtained under Section 20 of the said Act and thus, he would like this Court to uphold the order of discharge of S.P. Aggarwal on this score. Food Inspector Suraj Bhan in his testimony deposed that after preparing his report Ex. PW3/F, he submitted the papers to the Additional Director General of Health Services Dr. P. Dhish, whose signatures are on Ex. PW3/F and he identified his signatures on the said document. By virtue of the said document, necessary consent has been given under Section 20 of the said Act. It has been indicated in the document itself that Dr. Dhish has been empowered by the Government of India to sanction prosecution for the offences under the Prevention of Food Adulteration Act as required under Section , 20(1) of the said Act. The testimony of Food Inspector remained unchallenged in cross-examination.

(14) The learned counsel for the respondent has referred to Manohar Lal v. State, 19S8 Delhi Lawyer 199, wherein it has been held that burden of proving that requisite valid consent has been obtained rests upon the prosecution. In the cited case, the relevant document was not held to be proved as no one gave the statement that signatures of the authority giving the consent have been made by the said authority on the letter of consent. Such is not the case here. Here, Suraj Bhan, Food Inspector, clearly stated that he had forwarded the papers to the appropriate authority and he identified the signatures of the appropriate authority on the consent letter. I may refer to State of Rajasthan v. Ram Dayal, 1984(1) F.A.C. 17, a Division Bench judgment of the Rajasthan High Court, where also a question arose whether a particular order passed by the appropriate authority could be termed as a valid consent given under Section 20 of the said Act. The letter of consent was worded similarly as in the present case. The signatures of the appropriate authority were also proved in similar manner as in the present case and it held that nature of the evidence that may be required to be adduced by the prosecution for the purpose of establishing that the sanctioning authority had applied its mind to the facts of the case and had satisfied himself that the prima facie evidence existed for the alleged offender being put up before the court, would depend on the consents of the order passed by the sanctioning authority and if the order and the other evidence show that the sanctioning authority must have applied its mind to the facts of the case and had satisfied himself then it cannot be said that the consent has been given without application of mind. Similarly in Kedar Prasad Gupta v. State, 1986(3) F.A.C. 113. a Single Judge of the Orissa High Court also held that if the perusal of the sanction order itself shows that the competent authority had considered the report of the Food Inspector, it cannot be said that the sanction in question has been mechanically given and the consent is the product or non-application of mind. Same law was also laid down by a Single Bench of Orissa High Court in Bijoy Kumar Singh v. State of Orissa, 1986(3) F.A.C. 52. In the present case, it is true that the consent order Ex. PW1/B itself does not say that the appropriate authority had considered the documents and had applied its mind before giving the consent but the testimony of Food Inspector Suraj Bhan clearly shows that necessary papers were placed by him before Dr. Dhish who had given the necessary consent. So, an inference can be drawn from these facts that the appropriate authority had applied its mind to the facts of the case before giving the necessary consent. Hence, I do not find any merit in this contention of the learned counsel for the respondent that no proper evidence has been led by the prosecution to prove that the appropriate authority has given its consent after application of its mind.

(15) No other point has been urged before me.

(16) I allow this criminal revision petition and set aside the said part of the order of the Metropolitan Magistrate by which he had discharged Shri S.P. Aggarwal. The Metropolitan Magistrate shall now proceed with the case in accordance with law. The lower court file be returned to the Metropolitan Magistrate immediately so that the case may proceed expeditiously as it remained in suspended animation due to pendency of this criminal revision. S.P. Aggarwal to appear before the Magistrate concerned on March 19, 1990.