Telangana High Court
Kollapludi Guruswamy And Another vs The State Of A.P.,Rep.,Pp on 14 December, 2018
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
CRIMINAL PETITION NO.8717 OF 2016
ORDER:
The Criminal Petition is filed under Section 482 Cr.P.C. by the petitioners/A1 and A2, seeking to quash the proceedings in C.C.No.198 of 2015 on the file of the Additional Judicial First Class Magistrate, Kuppam, Chittoor District, taken cognizance for the offences punishable under Sections 3(1)(zz)(iii)(xi), 26(2)(i) and 27(1) and 59(i) of the Food Safety and Standards Act, 2006 (for short, 'the Act').
2. The sum and substance of the accusation is that on 23.05.2014 at about 11.30 A.M. the complainant-Food Safety Officer visited M/s.Schreiber Dynamix Diaries Ltd. Plot No.28, A-Block, Food Processing Part, Kuppam, Chittoor District, for inspection and on making due inquiries about the food items in the carton box in the store room from 1st petitioner, the respondent was informed that it contained 'Dodla Toned Milk Sealed Packet', and found there was a stock of 10,000 ltrs and each pack contained 500 ml. and he purchased four samples of 500 ml Dodla Toned Milk Sealed packets from the stock by paying Rs.92/- and obtained a cash receipt for the same and attested by 1st petitioner and the respondent issued notice under Form VA and sent one of the samples to the Food 2 Dr. SSRB,J Crl. P.No.8717 of 2016 Analyst, State Food Laboratory, Hyderabad, and received report on 11.06.2014 and the Analyst opined that the sample does not confirm to standards and thereby, adulterated and from that when addressed, the sanction order was issued on 29.10.2014. The sanction order Page 2 running in two pages speaks of the prosecution of A1-Kollapudi Guruswamy with array of Food Business Operator-cum-Production-cum-Quality Officer and A2-Rahul Patil with array as nominee of M/s. Schreiber Dynamix Dairies Ltd. It is pursuant to the sanction, the private complaint filed and taken cognizance against the accused.
3. Impugning the said cognizance order, the present criminal petition is filed saying without array of the company- M/s. Schreiber Dynamix Dairies Ltd., the employees of the company cannot be made liable for that liability is vicarious along with the company, the person responsible to the day-to- day affairs or as nominee.
4. In this regard, Section 66 of the Act reads as follows:
66. Offences by companies.-
(1) Where an offence under this Act which has been committed by a company, 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, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
3 Dr. SSRB,J Crl. P.No.8717 of 2016 Provided that where a company has different establishments or branches or different units in any establishment or branch, the concerned Head or the person in-charge of such establishment, branch, unit nominated by the company as responsible for food safety shall be liable for contravention in respect of such establishment, branch or unit:
Provided further 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 or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-
section (1), 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, 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 purpose of this section,-
(a) "company" means any body corporate and includes a firm or other association of individuals;
and
(b) "director" in relation to a firm, means a partner in the firm.
So far as the sub-section (1) of Section 66 of the Act is concerned, it is in para-materia to Section 141 of the Negotiable Instruments Act, 1881 amended from time-to-time including by Act 26 of 2015.
5. From the very wording in both, the person as well as the company, it is interpreted by the Apex Court's three Judge Bench expression in Aneeta Hada v. M/s. Godfather Travels & 4 Dr. SSRB,J Crl. P.No.8717 of 2016 Tours Private Limited1 particularly at Paragraph 59 that for maintaining the prosecution arraigning of a company as an accused is imperative and the other categories of offenders can only be brought in the drag-net on the touchstone of vicarious liability as the same has been stipulated in the provision itself.
6. Thus, it is very clear from the settled law supra that without array of the company, the persons responsible for day-to-day affairs including those nominees of the company cannot be made liable, but for to represent if at all the company made as accused, for their liability is only vicarious with the company. The said view was reiterated in Standard Chartered Bank v. State of Maharashtra2. Following the same, by common order in Crl.P.No.2415 of 2018 & batch dated 31.10.2018, this Court in the cases relating to Legal Metrology Act, 2009 with reference to wording of Section 49(1)(b) of the Legal Metrology Act, 2009 in use of the words "and" similar to "as well as" under the Negotiable Instruments Act quashed the proceedings for non-array of the company in saying the officers' responsibility arises vicariously along with the company and not independently. 1 (2012) 5 SCC 661 2 (2016) 6 SCC 62 5 Dr. SSRB,J Crl. P.No.8717 of 2016
7. Having regard to the above, this Criminal Petition is allowed by quashing the proceedings against the petitioners/A1 and A2 in C.C.No.198 of 2015 on the file of the Additional Judicial First Class Magistrate, Kuppam, Chittoor District. The bail bonds of the petitioners, if any, stand cancelled.
8. Miscellaneous petitions pending, if any, shall stand closed.
_________________________ Dr. B. SIVA SANKARA RAO, J Date: 14.12.2018 pab