[Cites 20, Cited by 0]
Gujarat High Court
Shree Ram Oil Mills, Represented ... vs State Of Gujarat on 28 November, 2025
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Reserved On : 20/08/2025
Pronounced On : 28/11/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION - FOOD
ADULTRATION ACT) NO. 3 of 2006
With
CRIMINAL MISC.APPLICATION NO. 1 of 2006
In R/CRIMINAL REVISION APPLICATION NO. 3 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE L. S. PIRZADA
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Approved for Reporting Yes No
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SHREE RAM OIL MILLS, REPRESENTED THROUGH & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR NV SOLANKI(860) for the Applicant(s) No. 1,1.1,1.2,1.3
NOTICE SERVED for the Respondent(s) No. 2
MR HK PATEL APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE L. S. PIRZADA
Date : 28/11/2025
CAV JUDGMENT
1. The present revision application preferred by the
applicants - original accused is directed against the
judgment and order dated 03.01.2006 passed by the
learned Sessions Judge, Navsari in Criminal Appeal No.16
of 2003, dismissing the appeal of the present applicants
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and confirming the judgment dated 24.03.2003 passed by
the learned Judicial Magistrate First Class, Gandevi in
Criminal Case No.1308 of 2001, convicting the present
applicants - accused for the offence punishable under
Sections 2(ia)(a)(m), 7(i) and 16(1)(a)(i) of the Prevention
of Food Adulteration Act, 1954 (for short, the "Act") and
passing an order to pay the fine amount of Rs.3000/- to
the partnership firm and the rest of the partners have
been sentenced to undergo imprisonment of 6 months'
and fine of Rs.3000/- each and, in default, to undergo 30
days' simple imprisonment.
2. In the present revision application, Criminal Misc.
Application No.1 of 2006 has been preferred by the
present applicants for production of the additional
evidence at the stage of the revision application.
3. The factual matrix, leading to filing of the present
revision application are that on 26.09.2000, at about
16:00 hrs., the Food Inspector and other persons have
raided the firm, namely, 'Shantinath Trading Company at
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Bilimora, Navsari and at that time, the original accused
no.1 was present and subsequently, a panchnama was
prepared as per the rules under the said Act and samples
were drawn and thereafter, on 27.09.2000, they have
created three parts of the said samples and also filled up
Form No.7 as per rules and it was sent to the Local
Health Authority, Valsad and as the accused no.1, who is
a vendor, they have taken the sample of groundnut oil
manufactured by Shri Ram Oil Mill, Khergam in the name
and style of "Bansidhar Double Filtered Groundnut Oil".
Thereafter, the report of the public analyst has been
received and the complainant has taken consent from the
competent authority and also called for the names of the
partners of Shri Ram Oil Mill and subsequently, the
complaint came to be given before the learned Magistrate
on 30.05.2001. After the complaint has been received, the
learned Magistrate has called upon the accused persons
whether they want to send the sample to the Central
Laboratory and accordingly, the accused prayed to send
the said sample to the Central Laboratory, Calcutta and
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accordingly, by preparing the rojkam, it was sent. As per
the reports of the Local Health Public Analyst and Central
Laboratory, the groundnut oil found to be adulterated.
Hence, the complaint has been given and the prosecution
has examined the witnesses. The learned trial Court, vide
the impugned judgment, has acquitted the accused no.1,
who is a vendor of the groundnut oil as the same was in
warranty period but, the partnership firm and the
partners of the firm have been convicted by the learned
Magistrate. The said judgment of conviction has been
challenged by preferring an appeal before the Sessions
Court, Navsari and the learned Sessions Judge has
dismissed the appeal. Hence, the present revision
application has been preferred.
4. Learned advocate Mr.N.V. Solanki for the applicants
submitted that both the impugned orders are contrary to
the evidence on record and the both the Courts below
have seriously erred in appreciating the evidence. It is
submitted that there is non-compliance of certain
mandatory provisions of the said Act and Rules but, this
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aspect has not been considered by both the Courts below
and, therefore, also the impugned judgments are required
to be quashed and set aside. It is further submitted that
both the Courts below have failed to appreciate that no
notice, as required under the provisions of Act, was given
to the applicants before launching of the prosecution
under the Act and notice was given only to the original
accused no.1 alone and no notice was issued to the rest of
the applicants - accused, who are the partners of the
firm, which is a manufacturer. It is submitted that the
applicants were required to be served with individual
notices. It is submitted that the applicant no.3, was
neither in-charge of the affairs of the firm nor responsible
for the conduct of the day-to-day business of the firm and
hence, the other partners were also deprived from their
right to defend their interest. Further, it is submitted that
the Courts below have failed to appreciate that the
sample taken from the business place of the original
accused no.1 and the samples of oil taken from the
custody of the accused no.1 on 26.09.2000, did not
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belong to the product sold and/or supplied by the
applicant and this aspect has not been considered and the
main vendor was acquitted by the learned Magistrate.
Merely on the basis of the bills/invoices, the Court come
to the conclusion that there was a warranty and the
accused no.1 has been acquitted and the case of the
prosecution itself falls on that aspect only. Hence, the
present revision application is required to be allowed.
4.1. It is submitted that there is a violation of Sections
11(1)(a) read with Section 14A of the Act and also
violation of Rule 12 of the Prevention of Food
Adulteration Rules. Further, it is submitted that there is a
violation of Section 11(4) of the Act as the report dated
30.10.2000 of the analyst has been received by the Food
Inspector on 13.11.2000. As per the provisions of Section
11(4) of the Act, within 7 days i.e. on 20.11.2000, the
same was required to be sent to the learned Magistrate
but, it was not sent within 7 days and was sent on
30.05.2001 i.e. after a period of about 6 months and,
therefore, also, there is a violation of the provisions of the
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said Act. It is submitted that there are no averments in
the complaint that the partners are handling day-to-day
affairs of the company and there is not a single averment
and hence, as per Section 17 of the Act, the accused
cannot be held guilty. It is submitted that as per Rule 14
of the Prevention of Food Adulteration Rules, the
complainant has admitted that at the time of taking the
sample from the shop of the accused no.1, he has not
cleaned the bottles at that time. So, there is a violation of
Rule 14 and considering this, it is submitted that the
impugned judgments are required to be quashed and set
aside.
4.2. In support of his arguments, learned advocate
Mr.Solanki has replied upon the following decisions:-
"(i) M. Eswaraiah vs. State of A.P. reported
in 1999 Cri.L.J. 1268,
(ii) Gopishankar S. Vaid and others vs. State
of Gujarat and another, reported in 2000
Cri.L.J. 4320,
(iii) Yogesh Babubhai Trivedi and others vs.
K.V. Dabhi, Food Inspector and others,
reported in 2006(1) G.L.H. 83,
(iv) P.R. Neelkantham and others etc. vs.
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State of Rajasthan and others, reported in
1986 Cri.L.J. 1811,
(v) Hindustan Un it Lever Ltd. vs. State of
Gujarat and another, reported in 2009(1)
Crimes 7 (Guj.),
(vi) State of Maharashtra vs. Bhaskar
Rajeshwar Gangshettiwar and others,
reported in 2004(1) FAC 13,
(vii) State of Gujarat vs. Punabhai Ramabhai
Machhi, reported in 2005(2) GLR 1767."
4.3. It is submitted that Criminal Misc. Application No.1
of 2006 has been submitted to produced the additional
documents at this stage, which are very relevant as the
samples, which have been taken from the accused no.1
from the same batch and the other samples, which have
been sent to the Local F.S.L., it was not found
adulterated. Therefore, this report is required to be
considered and hence, the additional documents are
required to be allowed at the revision stage.
5. On the other hand, learned A.P.P. Mr.H.K. Patel for
the respondent - State submitted that the present
revision application is devoid of any merits. The learned
Magistrate Court and the Sessions Court have considered
all the defenses of the accused persons and come to the
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conclusion that there is no violation of any mandatory
provisions. It is submitted that there are concurrent
findings of conviction by both the Courts below and at
this stage, this Court, at the time of invoking revisional
jurisdiction, cannot appreciate or reappreciate the oral
evidence, unless and until the judgments passed by the
Courts below are found to be perverse and against the
settled principles of law then only, the Court can
interfere. It is submitted that, therefore, the present
revision application, being devoid of any merits, the same
is required to be dismissed.
6. Heard the rival submissions of the learned advocates
for the respective parties, perused the impugned
judgments passed by the learned Judicial Magistrate First
Class, Gandevi and the learned Sessions Judge, Navsari
and also considered the decisions on which, the learned
advocate for the applicants has relied upon.
7. In the present case, it is an admitted position that
the present applicants have been convicted by the
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learned J.M.F.C., which was challenged by the applicants
by preferring an appeal before the Sessions Court,
Navsari and the Sessions Court, Navsari has also
confirmed the judgment of conviction. So, the present
applicants are facing the concurrent findings of
conviction.
8. As this is a revision application, as per the settled
legal position, when the High Court, in its revisional
jurisdiction, can call for and examine the record of any
proceedings for the purpose of satisfying itself as to
correctness, legality or propriety of any findings,
sentence or order. In other words, the jurisdiction is one
of Supervisory Jurisdiction exercised by the High Court
for correcting miscarriage of justice. But, the revisional
power cannot be equated with the power of an Appellate
Court nor can it be treated even as a second Appellate
Jurisdiction. So, normally, it is not appropriate for the
High Court to re-appreciate the evidence and come to its
own conclusion on the same when the evidence has
already been appreciated by the Magistrate as well as the
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Sessions Judge in appeal, unless any glaring feature is
brought to the notice of the High Court which would
otherwise tantamount to gross miscarriage of justice. In
that circumstances only, while exercising the revisional
jurisdiction, the High Court can interfere with the
conviction passed by the learned J.M.F.C. and confirmed
by the Sessions Court.
9. In light of the aforesaid proposition of law, the factual
situation of the present case is that it is not in dispute that
the original complaint came to be filed against the five
accused persons. The present applicants are shown as
accused nos.2 to 5, who are the manufacturers and accused
no.1, who is a vendor, has been acquitted by the learned
trial Court and the same has not been challenged by the
department. So far as the factual aspect is concerned,
original accused no.1 - Mr.Jayeshkumar Gandhi was
running a firm at Bilimora in the name and style of
"Shantinath Trading Company" and at that time, the Food
Inspector has came to the said shop on 26.09.2000 and has
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given the identity card and also appraised the vendor that
they want to inspect in presence of the panchas as per the
provisions of the said Act. Subsequently, they have taken
the sample of groundnut oil and the said groundnut oil was
having the brand name of 'Bansidhar' and the said brand
was manufactured by Shri Ram Oil Mill, Khergam, Taluka
Chikhli, District Navsari. The present applicant no.1 is the
partnership firm and other accused nos.1.1, 1.2 and 1.3 are
the partners of Shri Ram Oil Mill Limited. Further, three
parts of sample have been taken and on 27.09.2000, two
parts have been put into cover along with the memorandum
Form No.7, sealed and sent the same to the local authority,
Valsad for the test and another part was sent to Public
Analyst, Rajkot. Subsequently, the report came from the
public analyst office, which was received on 30.10.2000 and
as per the report, the result of analysis of Bellier Test was
found to be 37.5°C but, as per the P.F.A Limits, it must be
on 39.0°C to 41.0°C and the Halphen Test for cottonseed oil
was found to be more than the P.F.A. limit and the limit of
Bellier test is found to be less from the P.F.A. Limits. Hence,
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as per the report, the sample was found to be adulterated.
Subsequently, the department has obtained consent to
launch a prosecution and got permission for the private
complaint came to be filed against the vendor - accused
no.1, partnership firm, manufacturer company - accused
nos.2 and 3 partners have been joined as accused and
complaint came to be filed for the offence punishable under
Sections 2(ia)(a)(m) and Section 7(i) and Section 16(1)(a)(i) of
the said Act before the Court at Gandevi and the same was
numbered as Criminal Case No.1308 of 2001 on
30.05.2001. After that, the learned Magistrate has called
upon the accused persons and asked whether they want to
send the said sample to the Central Laboratory, Calcutta
and pursuant to that, they have agreed to send the one part
of sample to the Calcutta and for that, a rojkam was made
on 27.06.2001. Subsequently, the sample was sent to
Central Food Laboratory, Calcutta and report of the Central
Food Laboratory, Calcutta came and as per the report, the
Bellier test found to be as 38.0 Degree Celsius and Halphen
Test was found to be positive and 25.0 Red unit i.e. more
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than the value of the prescribed value under the P.F.A.
Limits and pursuant to that, the charge was framed against
the accused persons and to prove the case, the prosecution
has examined complainant - Ashokkumar Laxmanbhai
Patel vide Exh.27, another person - Dilipbhai Gotabhai
Gamit, who has given a complaint, has been examined vide
Exh.82, panch witness - Khedubhai Maganbhai was
examined at exh.90. The documentary evidence and all the
reports of the samples have been exhibited by the witnesses
and subsequently, delivered a judgment on 24.03.2003
whereby, accused no.1 - vendor has been acquitted and all
other persons has been convicted for the offence punishable
under Section 2(ia)(a),7(i), 16(1)(a)(i) and have been
sentenced. The learned trial Court also convicted the
accused no.2 - firm and awarded fine of Rs.3000/- and
accused No.3,4 & 5 partners of the firm, have been
sentenced to undergo six months imprisonment and fine of
Rs.3000/- each and, in default, to undergo 30 days' simple
imprisonment. The said judgment was challenged by the
present applicants before the learned Sessions Judge,
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Navsari by preferring Criminal Appeal No.16 of 2003 which
was dismissed on 03.01.2006, confirming the judgment of
conviction by the trial Court. Hence, the present revision
application has been filed.
10. As discussed above, at this stage, this Court is not
required to appreciate or reappriciate the evidence. Now, the
main defense taken by the accused persons i.e. the present
applicants is pertaining to violation of Section 11 of the Act
and more particularly, Section 11(4) of the said Act. For
convenience, Section 11 has been reproduced as under:-
"11. Procedure to be followed by food Inspectors.
--3 [(1) When a food inspector takes a sample of
food for analysis, he shall--
(a) give notice in writing then and thereof his
intention to have it so analysed 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.
(b) except in special cases provided by rules under
this Act, divide the sample then and there into
three parts and mark and seal or fasten up each
part in such a manner as its nature permits and
take the signature or thumb impression of the
person from whom the sample has been taken in
such place and in such manner as may be
prescribed:
Provided that where such person refuses to sign
or put his thumb impression the food inspector
shall call upon one or more witnesses and take his
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or their signatures or thumb impressions, as the
case may be, in lieu of the signature or thumb
impression of such person;
(c) (i) send one of the parts for analysis to the
public analyst under intimation to the Local
(Health) Authority; and
(ii) send the remaining two parts to the Local
(Health) Authority for the purposes of sub-section
(2) of this section and sub sections (2A) and (2E)
of section 13.
(2) Where the part of the sample sent to the public
analyst under sub-clause (I) of clause (c) of sub-
section (1) is lost or damaged, the Local (Health)
Authority shall, on a requisition made to it by the
public analyst or the food inspector dispatch one
of the parts of the sample sent to it under sub-
clause (ii) of the said clause (c) to the public
analyst for analysis.]
(3) When a sample of any article of food 4[or
adulterant] is taken under sub-section (1) or sub-
section (2) of section 10, 5[the food inspector
shall, by the immediately succeeding working day,
send send a sample of the article of food or
adulterant or both, as the case may be,] in
accordance with the rules prescribed for sampling
to the public analyst for the local area concerned.
[(4) An article of food seized under sub-section (4)
of section 10, unless destroyed under sub-section
(4A) of that section, and any adulterant seized
under sub-section (6) of that section shall be
produced before a magistrate as soon as possible
and in any case not later than seven days after the
receipt of the report of the public analyst.]
Provided *** 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.
[(5) If it appears to the magistrate on taking such
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evidence as he may deem necessary--
(a) that the article of food produced before him
under sub-section (4) is adulterated or
misbranded, he may order it--
(i) to be forfeited to the Central Government, the
State Government or the local authority, as the
case may be; or
(ii) to be destroyed at the cost of the owner or the
person from whom it was seized so as to prevent
its being used as human food; or
(iii) to be so disposed of as to prevent its being
again exposed for sale or used for food under its
deceptive name; or
(iv) to be returned to the owner, on his executing
a bond with or without sureties, for being sold
under its appropriate name or, where the
magistrate is satisfied that the article of food is
capable of being made to conform to prescribed
standards for human consumption after
reprocessing, for being sold after reprocessing
under the supervision of such officer as may be
specified in the order;
(b) that the adulterant seized under sub-section
(6) of section 10 and produced before him is
apparently of a kind which may be employed for
purposes of adulteration and for the possession of
which the manufacturer, distributor or dealer, as
the case may be, is unable to account
satisfactorily, he may order it to be forfeited to the
Central Government, the State Government or the
local authority, as the case may be.]
(6) [If it appears to the magistrate that any such--
(a) article of food is not adulterated; or
(b) adulterant which is purported to be an
adulterant is not an adulterant,
the person from whose possession the article of
food or adulterant was taken] shall be entitled to
have it restored to him and it shall be in the
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discretion of the magistrate to award such person
from such fund as the State Government may
direct in this behalf, such compensation not
exceeding the actual loss which he has sustained
as the magistrate may think proper."
11. So, the main defense taken by the present applicants
is that as per Section 11(4), an article of food seized under
sub-section (4) of Section 10, shall be produced before a
magistrate as soon as possible and not later than seven
days after the receipt of the report of the public analyst.
Further, in support of his argument, learned advocate for
the applicants has relied upon the judgment of the Hon'ble
Andra Pradesh High Court in the case of M. Eswaraiah
(supra). It is an admitted position in the present case that
the raid was conducted on 26.09.2000, the sample was sent
to the office of the local public Analyst, Rajkot on
25.10.2000 and the report has been prepared by the local
public analyst, Rajkot on 30.10.2000, which was received
by the Food Inspector on 13.11.2020. So, as per Section
11(4) of the Act, the sample was required to be sent to the
Magistrate by 20.11.2000. But, it is an admitted position
that the said sample has been sent to the Magistrate on
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30.05.2001 i.e. after almost the period of more than 5
months. Further, in the present case, after the public
analyst report has been received on 13.11.2000, complaint
came to be given before the Magistrate on 30.05.2001. As
per Section 13(2) of the Act, after the person getting a copy
of the report, accused can get an opportunity to get the
sample or article of food kept by Local (Health) Authority
and analyzed by the Central Food Laboratory within 10
days. In the present case, it is an admitted position that
after receipt of the report of the Public Analyst, Rajkot,
report has not been sent and article of food had not been
produced before the Magistrate and on 30.05.2001 i.e.
almost after the period of more than 5 or 6 months, it was
produced before the Magistrate and subsequently, it was
sent on 27.09.2000. So, apparently, a valuable right of the
applicants has been affected under Section 13(2) of the Act.
Hence, after getting report from the local public analyst,
Rajkot, it has been sent to the Central Laboratory Calcutta
i.e. after a period of more than 6 months. So, there is a
clear-cut violation of Section 11(4) of the Act and on receipt
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of the report on 13.11.2000, the article should have been
produced before the Magistrate on 20.11.2000, but it was
not sent to the Magistrate and was sent on 30.05.2001 i.e.
after more than 6 months. So, there is a clear-cut violation
of Sections 11(4) and 13(2) of the Act.
12. Further, the second defense taken by the applicants is
that there is a violation of Rule 14 of the Prevention of Food
Adulteration Rules, 1955. It is the defense taken by the
applicants that the bottle, in which the sample has been
taken, has not been cleaned by the person, who has taken
the sample on 26.09.2000 when the sample has been taken
from the shop of the vendor. In this regard, it is required to
consider the evidence of complainant - Ashokbhai
Laxmanbhai Patel, who has been examined as PW-1 at
Exh.27. In his cross-examination, when a question had
been put, it was the answer that, 'it is true that who has
cleaned the said bottles, he had no knowledge regarding
this.' Further, he stated that one vessel was with that bottle
but, the said vessel was cleaned by him. So, from this cross-
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examination, it has been established he has cleaned the
vessel but, not the bottles while taking the samples. Under
Rule 14, the samples of food for purpose of analysis are
required to be taken in clean dry bottles and shall be closed
sufficiently tight to prevent leakage or evaporation and in
case of the dry substance, prevent entrance of moisture in
the bottle is required to be seen carefully and it is a
mandatory provision. Witness - Ashokbhai Patel, in his
deposition, has specifically stated that he has not cleaned
the bottles in which, the samples have been taken on the
spot. So, in view of the settled legal position, there is a
violation of Rule 14 and in the present case, the prosecution
has failed to prove compliance of mandatory requirements.
13. The another defense taken by the applicants is
pertaining to violation of Section 17(4) of the Act. Section 17
pertains to offences by the Company, more particularly,
Sections 17(4), which reads as under:-
"17(4)" Notwithstanding anything contained in the
foregoing sub-sections, 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
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attributable to, any neglect on the part of, any
director, manager, secretary or other officer of
the company [not being a person nominated under
sub-section (2)] 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 purposes of this section -
(a) "Company" means any body corporate and
includes a firm or other association of individuals;
(b) "director" in relation to a firm, means a
partner in the firm; and
(c) "manager", in relation to a company engaged
in hotel industry, includes the person in charge of
the catering department of any hotel managed or
run by it.]"
14. On perusal of Section 17(4), it is required to consider
the decision of this Court in the case of Loknath
Bhattacharya Managing Director vs. State of Gujarat
reported in 2009(2) GLR 1290.
14. It is profitable to reproduce Section 17 as a
whole, which reads as under:--
"17. Offences by companies - (1) Where an offence
under this Act has been committed by a company--
(1)(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 the person responsible), or
(ii) Where no person has been so nominated, every
person who at the time the offence was committed
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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 provides that
the offence was committed without his knowledge
and that he exercised all due diligence to prevent
the commission of such offence.
(2) 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, along with the
written consent of such director or manager for
being so nominated.
Explanation - 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.
(3) 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
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(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 tot he
company, to cancel the nomination [which request
shall be complies with by the Local (Health)
Authority), whichever is the earliest, continue to
be the person responsible:
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:
Provided further that where such person makes a
request under clause (iii), the Local (Health)
Authority shall riot cancel such nomination with
effect from a date earlier than the date on which
the request is made.
(4) Notwithstanding anything contained in the
foregoing sub-sections, 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 [not being a person nominated under
sub-section (2)] 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 purposes of this section--
(a) "Company" means any body corporate and
includes a firm or other association of individuals;
(b) "director" in relation to a firm, means a partner
in the firm; and
(c) "manager", in relation to a company engaged in
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hotel industry, includes the person in charge of the
catering department of any hotel managed or run
by it.]"
15. That perusal of Section 17 is with regard to
offence by companies and clause (a) of subsection
(i) of Section (1) of Section 17 empowers the
company to nominate a person under subsection
(2) of the Act and in absence thereto if no person
is so nominated, sub-clause (ii) makes it clear that
offences said to have been committed by a person
who was in charge of, and was responsible to, the
company for the conduct of the business of the
company. The proviso to the above section begins
with a phrase 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 an offence.
16. Thus, a plain reading of the above sub-section
(1) as a whole with proviso makes it clear that so
far as nomination is made under sub-section (2) of
a person, other directors or any other person is not
liable to be proceeded under the Act. At the same
time, if nomination is not made, the Director or
any other officer of the company is liable. The
interpretation of the above proviso of sub-section
(1) read with subsection (4) mandates the
prosecution to make specific averments about a
person in-charge of, and responsible for the
offence for conduct of the business of the company
unless such fact is pleaded, viz. the fact about
connivance, consent, negligent etc. under
subsection (4) will not come into operation.
17. The Apex Court in the case of R.Banerjee
(supra) in para 9 held as under :-
"9. On a careful perusal of the complaints lodged
by the Food Inspector under the Act it is evident
that intimation regarding the nomination in favour
of H.Dayani and Dr.Nirmal Sen had been
communicated to the Food Inspector before the
complaints came to be lodged. This is evident from
the averments made in the respective complaints.
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The nomination was, however, not acted upon by
the complainant on the ground that it was
incomplete. It was, therefore, said that in the
absence of a valid nomination from the concerned
company the Directors of the company were liable
to be proceeded against the punished on proof of
the charge levelled against them in the complaint.
It will thus be seen that there is no allegation in
the complaint which would bring the case within
the mischief of Section 17(4) of the Act. There is
no allegation in the complaint that the offence was
committed with the
consent/connivance/negligence of the Directors,
other than the nominated person, who were
impleaded as co-accused. We are, therefore,
satisfied that the allegations in the complaint do
not make out a case under sub-section (4) of
Section 17 of the Act. That being so, the inclusion
of the co- accused other than the company and the
nominated person as the persons liable to be
proceeded against and punished cannot be
justified. As held by this Court in Municipal
Corporation of Delhi v. Ram Kishan Rohtagi where
the allegations set out in the complaint do not
constitute any offence, no process can be issued
against the co-accused other than the company
and the nominated person and the High Court
would be justified in exercising its inherent
jurisdiction under Section 482 of the Code of
Criminal Procedure, 1973 to quash the order
passed by the Magistrate taking cognizance of the
offence against such co- accused".
20. It is clear that right from the case of State of
Punjab v. Devinder Kumar reported in AIR 1983
SC 545, about principle of vicarious liability in
criminal offence vis-a-vis company and its
personnel including the directors and requirement
of necessary and specific averments or contentions
about commission of offence and in the above
context if the complaint is perused, only averment
against the present petitioners is that they are
Managing Director and Director of the petitioner
company and nothing beyond that. Therefore, the
complaint lacks necessary ingredients and
averments with regard to commission of alleged
offence and issuance of process by the Magistrate
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is nothing but arbitrary exercise of power and
contrary to the procedure.
22. So far as the contention of non-obstinate
clause viz. sub-section (4) of Section 17 of the Act,
as relied by the learned APP, the bracketed
portion excludes the persons nominated under
sub-section (2) of Section 17 of the Act and
therefore, the contention of learned APP that sub-
section (4) of Section 17 overrides other preceded
sections, cannot be accepted. At the same time,
sub-section (4) of Section 17 of the Act begins with
a phrase "notwithstanding ... it is proved" and,
therefore, when at the threshold requirement of
sub-section (2) of Section 17 is fulfilled coupled
with the fact that there are no specific averments
in the complaint qua the Managing Director and
Director that they were in-charge of day today
conduct of the business and responsible for
alleged commission of crime under the Act, I do
not see any justification to permit the concerned
Magistrate to proceed further with the
proceedings impugned in this petition. A case is
made out by the petitioners to exercise powers
under Section 482 of the Code of Criminal
Procedure, 1973 since the complaint and the
process issued subsequently do not contain
allegations prima facie if examined on the face
value attracting ingredients of the offences and for
the reasons stated herein above, the impugned
complaint is required to be quashed and set
aside."
15. Considering the pronouncement of this Court, as per
Section 17(4), there must be an averment in the complaint
qua the firms and the partners, who are in-charge of day-to-
day conduct of the business and responsible for the alleged
commission of crime under the Act is required to be
mentioned. In the present case, looking to the complaint
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given by - Ashokkumar Lakshmanbhai Patel, there is not a
whisper about the original accused no.2, who is a
partnership firm, manufacture, accused nos.3 to 5 as per
the complaint, they are the partners of the firm. There is not
a single whisper that who are the responsible persons of
this firm. Even nothing has been stated in the complaint
about the partnership firm and other partners. So, there are
no averments and there is a clear-cut violation of Section
17(4) of the Act and considering the above pronouncement
of this Court, there is a violation of Section 17 of the Act.
16. As discussed above, in the present case, the learned
trial Court and the Sessions Court have not considered this
aspect that there is a violation of Sections 11(4), 13(2) and
17(4) of the Act as well as Rule 14 of the Rules. Considering
this, as discussed above, after receipt of the report from the
Local Public Analyst, the sample has not been sent to the
Magistrate within 7 days. Even after receipt of the said
report, after more than 6 months, the complaint came to be
filed before the Magistrate along with the sample and after
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20 to 25 days, the sample has been sent to the Central
Laboratory, Calcutta. Further, from the cross-examination
of witness - Ashokumar Patel, it emerges that there is a
violation of Rule 14 of the Prevention of Food Adulteration
Rules, 1955 and also, there is not a whisper about the
applicant nos.1.1, 1.2 and 1.3 that how they are responsible
for the commission of this offence, who are looking after the
day-to-day business of the company.
17. Hence, considering the overall facts and circumstances
of the case, there is a violation of the mandatory provisions,
as discussed above and illegality is found to have been
committed by both the Courts below. The findings recorded
by both the Courts below are found to be erroneous on the
ground that they have not discussed that there is a violation
of the mandatory provisions of Sections 11(4), 13(2), 17(4) of
the Act and also violation of Rule 14 of the Rules. So, the
findings recorded by both the Courts below found to be
erroneous, perverse and against the settled principles of
law. Hence, the present revision application is required to
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be allowed and the judgment of conviction passed by the
learned Magistrate and confirmed by the appellate Court is
required to be interfered with.
18. As discussed above, present Criminal Revision
Application No.3 of 2006 is hereby allowed. The judgment
and order dated 03.01.2006 passed by the learned
Sessions Judge, Navsari in Criminal Appeal No.16 of
2003, dismissing the appeal of the present applicants and
the judgment dated 24.03.2003 passed by the learned
Judicial Magistrate First Class, Gandevi in Criminal Case
No.1308 of 2001, convicting the present applicants -
accused are hereby quashed and set aside. In the result,
the present applicants are hereby acquitted from all the
charges.
19. In view of the disposal of Criminal Revision Application
No.3 of 2006, Criminal Misc. Application No.1 of 2006
would not survive also stands disposed of. Rule is made
absolute to the aforesaid extent.
(L. S. PIRZADA, J)
Hitesh
