Issac Eorge @ Issac Gorge vs The State Of Jharkhand
2022 Latest Caselaw 2785 Jhar

            IN THE HIGH COURT OF JHARKHAND AT RANCHI
                           Cr.M.P. No. 1063 of 2012
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1. Issac Eorge @ Issac Gorge

2. R.K.Mahato @ Ram Krishna Mahato ... ... Petitioners Versus

1. The State of Jharkhand

2. Food Inspector, Jamshedpur ... ... Opposite Parties

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CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR

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For the Petitioners : Mr. Indrajit Sinha, Advocate For the State : Mr. Sanjay Kumar Srivastava, A.P.P.

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Order No. 07 / Dated: 21 July, 2022 st

Heard learned counsel for the petitioners and learned counsel for the State.

Learned counsel for the petitioners has submitted that this Cr.M.P. has been preferred against the order taking cognizance dated 20.10.2011 by the learned Trial Court for the offence punishable under Section 16(1)(a)(i)(ii) of the Prevention of Food Adulteration Act, 1954 against the petitioners vide order dated 20.10.2011 passed by the learned Judicial Magistrate, 1st Class, Saraikella in connection with G.O. No. 138 of 2011 alleging therein that the petitioners were selling the adulterated Arhar Dal due to the presence of artificial colour and silicate polished vide its report No. 438 dated 09.07.2011.

It has been pointed out by the learned counsel appearing on behalf of the petitioners that it is an admitted case of the prosecution that they are the employees of Usha Martin Ltd. and petitioner No. 1, Issac Eorge @ Issac Gorge, is the Manager Personnel and petitioner No.2, R.K.Mahato @ Ram Krishna Mahato, is the officer Personnel and the alleged occurrence had taken place in the canteen of the said company and since the company has not been made a party within the meaning of Section 17 of the Prevention of Food Adulteration Act, 1954, the prosecution instituted by the opposite party No. 2 is bad in law. Learned counsel has relied upon the rulings of the Hon'ble Supreme Court as reported in Hindustan Unilever Ltd. vs. State of M.P. (2020) 10 SCC 751.

It has further been pointed out that it is an admitted case of prosecution that the alleged occurrence had taken place in the canteen wherein the Arhar Dal was to be used in the food preparation and therefore even if for the sake of argument the adulterated Arhar Dal which is said to have been recovered from the canteen, it is not an offence within the meaning of 16(1)(a)(i)(ii) of the Prevention of Food Adulteration Act, 1954 because it was not for sale and therefore, this Cr.M.P. is fit to be allowed. The learned counsel has relied upon the rulings of Hon'ble Supreme Court as reported in (1976) 1 SCC 546 (Municipal Corporation of Delhi vs. Laxmi Narain Tandon and others). Further it has also been contended on behalf of the petitioners that they had never been nominated by the company to look after the affairs of the Canteen nor any document has been filed on behalf of the prosecution to show that the petitioners have been nominated as the persons responsible and as such the mandate of section 13 of the Prevention of Food Adulteration Act, 1954 has also not been complied and hence the impugned order is fit to be set aside.

On the other hand the learned counsel for the State has filed the counter-affidavit and submitted that on the date of occurrence petitioner No. 1, Issac Eorge @ Issac Gorge, was the Manager Personnel and petitioner No.2, R.K.Mahato @ Ram Krishna Mahato, was the officer Personnel of the canteen where the sample was seized but did not controvert this fact that only the petitioners have been arrayed as an accused and not the company.

Further learned counsel for the State submitted that the alleged adulterated Arhar Dal has been recovered from the canteen of the company and the same was stored there but not for sale.

Having heard learned counsel for the parties and perused the records of the case. It is evident that the case of the prosecution as per the complaint submitted by the Opposite Party No. 2 is that the Petitioners are the Officers of Usha Martin Ltd. (Usha Aolloy's & Steel Division), Gamharia. It has been alleged by the Opposite Party No.-2 that on 14.06.2011 there was sale of adulterated Arhar Dal. The Public Analyst MADA, Dhanbad has opined that the Arhar Dal is adulterated due to presence of artificial colour

and silicate polished vide its report No. 438 dated 09.07.2011. As such offence punishable under sections 16(c)(a)(i)(ii) of the Prevention of Food Adulteration Act has been committed by the accused petitioners. In order to appreciate the allegation as made out in the prosecution report it is necessary to appreciate at first the relevant provision of Section 16(1)(a)(i)(ii) of the Prevention of Food Adulteration Act, 1954 which reads as under :

Section 16(1)(a)(i)(ii) of the Prevention of Food Adulteration Act, 1954. "Subject to the provisions of sub-section (1A) if any person-

(b) whether by himself or by any other person on his behalf, imports into India or manufactures for sales or stores, sells or distributes any article of food-

(iii) which is adulterated within the meaning of sub-clause (m) of clause (ia) of section 2 or misbranded within the meaning of clause (ix) of that section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority :

(iv) other than an article of food referred to in sub-clause (i), in contravention of any of the provisions of this Act or of any rule made thereunder"

Sub-clause (m) of clause (ia) of section 2 "(m) if the quality or purity of the article falls below of prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health: Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability in either case, solely due to natural causes and beyond the control of human agency, then such article shall not be deemed to be adulterated within the meaning of this sub- clause. Explanation- Where two or more articles of primary food are mixed together and the resultant article of food-

(c) is stored, sold or distributed under a name which denotes the ingredients thereof; and

(d) is not injurious to health, then, such resultant article shall not be deemed to be adulterated within the meaning of this clause."

Clause (ix) of section 2 "(ix)"misbranded"- an article of food shall be deemed to be misbranded-

(l) if it is an imitation of, or is a substitute for, or resembles in a manner likely to deceive another article of food under the name of which it is sold, and is not plainly and conspicuously labelled so as to indicate its true character;

(m) if it is falsely stated to be the product of any place or country;

(n) if it is sold by a name which belongs to another article of food;

(o) if it is so coloured, flavoured or coated, powdered or polished that the fact that the article is damaged is concealed or if the article is made to appear better or of greater value than it really is;

(p) if false claims are made for it upon the label or otherwise;

(q) if, when sold in packages which have been sealed or prepared by or at the instance of the manufacturer or producer and which bear his name and address, the contents of each package are not conspicuously and correctly stated on the outside thereof within the limits of variability prescribed under this Act:

(r) if the package containing it, or the label on the package bears any statement, design or device regarding the ingredients or the substances contained therein, which is false or misleading in any material particular; or if the package is otherwise deceptive with respect to its contents;

(s) if the package containing it or the label on the package bears the name of a fictitious individual or company as the manufacturer or producer of the article;

(t) if it purports to be, or is represented as being, for special dietary uses, unless its label bears such information as may be prescribed concerning its vitamin, mineral, or other dietary properties in order sufficiently to inform its purchaser as to its value for such uses;

(u) if is contains any artificial flavouring, artificial colouring or chemical preservative, without a declaratory label stating that fact, or in contravention of the requirements or this Act or rules made thereunder;

(v) if it is not labelled in accordance with the requirements of this Act or rules made thereunder;"

From the perusal of the impugned cognizance taking order dated 20.10.2011 it is found that the learned Judicial Magistrate, First Class, Saraikella did not apply its judicial mind on the fact that the alleged Arhar Dal had been recovered from the canteen which was not made for any sale rather it was used for making the preparation of the food and

therefore, Section 16(1)(a)(i)(ii) of the Prevention of Food Adulteration Act, 1954 is not attracted.

Learned counsel for the petitioners has rightly relied upon the rulings of the Hon'ble Supreme Court in the case of Municipal Corporation of Delhi vs. Laxmi Narain Tandon and others) where the Hon'ble Supreme Court had an opportunity to consider as to whether the storage of food article for a purpose other than for sale will constitute offence under section 16 of the Prevention of Food Adulteration Act or not and has observed as follows;

"From a conjoint reading of the above referred provisions, it will be clear that the broad scheme of the Act is to prohibit and penalise the sale, or import, manufacture, storage or distribution for sale of any adulterated article of food. The terms "store" and "distribute" take their colour from the context and the collocation of words in which they occur in sections 7 & 16. "Storage" or "distribution" of an adulterated article of food for a purpose other than for sale does not fall within the mischief of this section.

Further it has also been pointed out that the complainant has nowhere stated that the petitioners were nominated under Section 17(2) of the Prevention of Food Adulteration Act, 1954 to look after the affairs of the canteen nor any document has been filed to show that the accused petitioners are the nominated persons responsible and thus the mandate of Section 13(2) of the Prevention of the Food Adulteration Act, 1954 has also not been followed.

Further it is found that in the instant case the petitioners have been made as an accused without arraying the company i.e. Usha Martin Ltd. as an accused by the prosecution which is the mandatory requirement of law under Section 17 of the Prevention of Food Adulteration Act, 1954. In order to appreciate this contention raised on behalf of the petitioners it is necessary to appreciate the provisions of law which read as under;

"Section 17 of the Act reads as under;

17. Offences by companies-(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 the person responsible), or

(ii) where no person has been so nominated, every person who at the time the offence was committed was 17 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.

(2) **** **** Hon'ble Supreme Court in Hindustan Unilever Ltd v/s State of MP as reported in (2020) 10 SCC 751 has observed as under:

In this case which is related to the offence punishable under the Prevention of Food Adulteration Act, 1954, while dealing with the similar question of held that aforesaid clause (a) and (b) of section 17 of the PFA Act, 1954 are not in alternative but conjoint. With these observations, Hon'ble Supreme Court while allowing the criminal appeal and by dismissing the original criminal complaint held in para 22 & 23 of the judgement as under:

"Section 17 of the Act reads as under:

17. Offences by companies - (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 he 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 was 17 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.

(2) **** ****

23. Clause (a) of sub-section (1) of Section 17 of the Act makes the person nominated to be in charge of and responsible to the company for the conduct of business and the company shall be guilty of the offences under clause (b) of sub-section (1) of Section 17 of the Act.

Therefore, there is no material distinction between Section 141 of the NI Act and Section 17 of the Act which makes the company as well as the nominated person to be held guilty of the offences and / or liable to be proceeded and punished accordingly. Clauses (a) and (b) are not in the alternative but conjoint. Therefore, in the absence of the company, the nominated person cannot be convicted or vice versa. Since the Company was not convicted by the trial court, we find that the finding of the High Court to revisit the judgment will be unfair to the appellant nominate person who has been facing trial for more than last 30 years. Therefore, the order of remand to the trial court to fill up the lacuna is not a fair option exercised by the High Court as the failure of the trial court to convict the Company renders the entire conviction of the nominated person as unsustainable."

In view of the aforesaid categorical rulings it is found that it is an admitted case of the prosecution that the petitioners have been arrayed as an accused and not the company Further it is found that the complainant has nowhere stated that the petitioners were ever nominated under Section 17(2) of the Prevention of Food Adulteration Act, 1954 as in-charge or responsible for the conduct of the business of the company. Further it is manifest from the counter filed on behalf of State that the petitioners have been debarred from their valuable right under Section 13 of the Prevention of Food Adulteration Act, 1954 as the complainant was never served with notice as required under Section 13(2) of the Prevention of Food Adulteration Act, 1954 and therefore, they were not responsible for the conduct of the business of the company.

Having taken into consideration the aforesaid facts, the impugned order taking cognizance dated 20.11.211 is bad in law and is fit to be set

aside. Accordingly, the impugned order dated 20.10.2011 passed by the learned Judicial Magistrate, 1st Class, Saraikella in connection with G.O. No. 138 of 2011 is quashed against these petitioner only and this Cr.M.P. is allowed.

J.Minj                                          (Navneet Kumar, J.)