Himachal Pradesh High Court
Mahindra Holidays & Resorts India Ltd vs State Of H.P. & Anr on 14 July, 2023
Author: Sushil Kukreja
Bench: Sushil Kukreja
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Cr. MMO No. 151 of 2018
Decided on: 14.07.2023
Mahindra Holidays & Resorts India Ltd.
....Petitioner
Versus
State of H.P. & Anr. ....Respondents
Coram
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1
For the petitioner : Ms. Shalini Thakur, Advocate.
For the respondents : Mr. B.N. Sharma, Additional
Advocate General.
Sushil Kukreja, Judge (Oral)
The present petition under Section 482 of the Criminal Procedure Code has been filed by the petitioner for quashing of order dated 25.08.2017, 09.10.2017 and all subsequent orders passed by the Court of learned Judicial Magistrate 1st Class, Court No. 2, Shimla, District Shimla, H.P., in Case No. 36-3 of 13/09, titled Food Inspector Vs. Vikas Kumar & Anr., under Section 16(1) (a)
(i) read with Section 7(i) of Prevention of Food Adulteration Act, 1954, now pending before the Court of 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 18/07/2023 20:33:35 :::CIS 2learned Judicial Magistrate 1st Class, Court No. 5, Shimla, .
District Shimla, H.P.
2. The brief facts of the case as per the petitioner are that on 30.06.2009, at 2:15 P.M., Food Inspector/respondent No. 2 inspected the premises known as M/s Club Mahindra Whispering Pines Mashobra, Shimla and at that time, one Vikas Kumar was conducting the affairs of the business of the hotel as Executive Sous Chef. Vikas Kumar had about 10 kgs of Paneer kept in stainless steel pan for sale to general public for human consumption. Respondent No. 2 purchased 3X250 gms of "Paneer" from Vikas Kumar and sent a part of sample of "Paneer" to Public Analyst Kandaghat. Vide his report dated 06.08.2009, the sample of "Paneer" was found to be adulterated. Thereafter, the complaint was filed by respondent No. 2 before the learned trial Court under Section 16(1) (a) (i) read with Section 7(i) of Prevention of Food Adulteration Act, 1954. It was alleged that since Vikas Kumar had kept "Paneer" made from un-indicated Milk under Section 2(ia) (m) in his possession meant for sale to general public and sold the same to respondent ::: Downloaded on - 18/07/2023 20:33:35 :::CIS 3 No. 2/Food Inspector, he had thereby committed an .
offence punishable under Section 16(1) (a) (i) of Prevention of Food Adulteration Act, 1954, read with Section 7 of the Act. It was further alleged in the complaint that M/s Club Mahindra Whispering Pines Mashobra, Shimla through its proprietors/partners(if Act. On r the to any)/nominee/managing directors are also liable under the complaint filed Inspector/respondent No. 2, it was observed by the by Food learned trial Court vide order dated 13.11.2009 that there existed prima facie case against the accused persons and accordingly summons were ordered to be issued against them. Even though, accused No. 1, Vikas Kumar was served and remained present in the learned trial Court, however, later on he was declared as proclaimed offender vide order dated 06.04.2013. Vide order dated 28.08.2014, respondent No. 2 was directed by the Court to furnish the names of directors of the petitioner-
company. The petitioner was impleaded as accused No. 2 through its partners/proprietors/nominees/Managing Directors vide subsequent orders passed by the learned ::: Downloaded on - 18/07/2023 20:33:35 :::CIS 4 trial Court. The petitioner came to know about the case in .
the 1st week of June, 2015 when some police officials came to inquire about the partners/nominees/Managing Directors of M/s Club Mahindra in connection with the case. Thereafter, the petitioner preferred Cr. MMOs No. 228 & 229 of 2015, praying therein that order dated 13.11.2009 for summoning the petitioner/accused No. 2 to face the trial of the case and all subsequent proceedings including the complaint and the issuance of non-bailable warrants/notice/summons be declared illegal, erroneous, improper, an abuse of process of law and contrary to facts of law and sought quashing of criminal case No. 36-3 of 13-09 pending before the Court of learned Judicial Magistrate 1st Class, Court No. 2, Shimla, District Shimla, H.P.
3. The aforesaid petitions were allowed by a Coordinate Bench of this Court vide judgment dated 04.05.2016 and orders of the learned trial Court in summoning Jaimini Kumar Shah were quashed in their entirety. The relevant portion of the judgment reads as under:-
::: Downloaded on - 18/07/2023 20:33:35 :::CIS 5"6. For whatever has been stated above and based on the aforesaid reasoning these .
petitions are allowed. The orders of the learned trial Magistrate in summoning Jaiminikumar Shah are quashed in their entirety. Jaiminikumar Shah shall not be considered as being an accused in the aforesaid complaints.
7. This judgment, however, shall not come in the way of the respondent in moving an appropriate application strictly in accordance with the provisions of the Prevention of Food Adulteration Act, 1954 read with the relevant provisions of Code of Criminal Procedure for summoning any nominated person or persons as accused by motioning the learned trial Court based upon all the relevant legal provisions that such person or persons indeed at the relevant time were in charge of as well as responsible to the company for the conduct of the business of the company hence his/their impleadment as an accused alongwith Vikas Kumar is necessary."
4. After the aforesaid petitions were allowed by this Court, the learned trial Court vide order dated 25.08.2017 had again issued notices to the petitioner without going through the judgment passed by this Court in Cr. MMOs No. 228 & 229/2015.
5. The perusal of the judgment passed by this Court shows that the liberty was granted to the respondent to move an appropriate application strictly in ::: Downloaded on - 18/07/2023 20:33:35 :::CIS 6 accordance with the provisions of the Prevention of Food .
Adulteration Act, 1954, read with the relevant provisions of Code of Criminal Procedure for summoning any nominated person or persons as accused by motioning the learned trial Court based upon all the relevant legal provisions that such person or persons indeed at the relevant time were in charge of as well as responsible to the company for the conduct of the business of the company. However, perusal of the record shows that no such application was filed by the respondent and despite that the learned trial Court had proceeded to issue notice to the petitioner.
6. Since this Court had already quashed summoning order issued to the petitioner, it was not open to the learned trial Court to have issued summons/notice again to the petitioner without going through the judgment passed by this Court and also without verifying the status of the case from respondent No. 2.
7. Therefore, impugned orders dated 25.08.2017, 09.10.2017 and all subsequent orders issuing notices to ::: Downloaded on - 18/07/2023 20:33:35 :::CIS 7 the petitioner are against the judgment passed by this .
Court in Cr. MMOs No. 228 & 229/2015, as such, the instant petition is allowed and impugned orders dated 25.08.2017, 09.10.2017 and all subsequent orders passed by the Court of learned Judicial Magistrate 1 st Class, Court No. 2, Shimla, District Shimla, H.P., in Case No. 36-3 of 13/09, titled Food Inspector Vs. Vikas Kumar & Anr., now pending before the Court of learned Judicial Magistrate, 1st Class, Court No. 5, Shimla, District Shimla, H.P., are quashed and set aside.
8. However, respondent No. 2 is at liberty to move an appropriate application strictly in accordance with the provisions of the Prevention of Food Adulteration Act, 1954, read with the relevant provisions of Code of Criminal Procedure for summoning any nominated person or persons as accused, who at the time of commission of the alleged offence was/were in charge of and responsible to the company for the conduct of its business, hence, his/their impleadment as an accused alongwith Vikas Kumar is necessary.
9. In view of the above, the petition, so also pending application(s), if any, stands disposed of.
::: Downloaded on - 18/07/2023 20:33:35 :::CIS 8Record of the learned trial Court be sent back .
forthwith.
(Sushil Kukreja)
July 14, 2023 Judge
(raman)
r to
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