Bombay High Court
Adhiraj Amar Kannhaiyalal Sarin vs State Of Maharashtra on 23 July, 2010
Author: R. M. Borde
Bench: R. M. Borde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, AT NAGPUR.
CRIMINAL APPLICATION NO. 658 OF 2010
1. Adhiraj Amar Kannhaiyalal Sarin
Director of M/s. Bunge India
Private Limited, B-401/501,
Business Square, Andheri-kurla Road,
Chakala, Andheri-East,
Mumbai-400 093.
2. Sudhakarrao Sheshgirirao Desai
Director of M/s. Bunge India
Private Limited, B-401/501,
Business Square, Andheri-kurla Road,
Chakala, Andheri-East,
Mumbai-400 093.
3. Sanjay Satish Jain
Director of M/s. Bunge India
Private Limited, B-401/501,
Business Square, Andheri-kurla Road,
Chakala, Andheri-East,
Mumbai-400 093.
4. Subramaniam Natraj s/o Neelkantan Subramniam
Director of M/s. Bunge India
Private Limited, B-401/501,
Business Square, Andheri-kurla Road,
Chakala, Andheri-East,
Mumbai-400 093.
5. M/s. Bunge India
Private Limited, B-401/501,
Business Square, Andheri-kurla Road,
Chakala, Andheri-East,
Mumbai-400 093.
6. Adhiraj Amar Sarin
Director of M/s. Bunge India
Private Limited, B-401/501,
Business Square, Andheri-kurla Road,
Chakala, Andheri-East,
Mumbai-400 093.
7. Sudhakarrao Sheshgirirao Desai
Director of M/s. Bunge India
Private Limited, B-401/501,
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Business Square, Andheri-kurla Road,
Chakala, Andheri-East,
Mumbai-400 093.
8. Sanjay Satish Jain
Director of M/s. Bunge India
Private Limited, B-401/501,
Business Square, Andheri-kurla Road,
Chakala, Andheri-East,
Mumbai-400 093.
9. Subramaniam Natraj s/o Neelkantan Subramniam
Director of M/s. Bunge India
Private Limited, B-401/501,
Business Square, Andheri-kurla Road,
Chakala, Andheri-East,
Mumbai-400 093.
10. M/s. Bunge India
Private Limited, B-401/501,
Business Square, Andheri-kurla Road,
Chakala, Andheri-East,
Mumbai-400 093. :: APPLICANTS
-: Versus :-
State of Maharashtra,
at the instance of Food Inspector
Sandeep S. Deore, Food Inspector,
Office of Joint Commissioner of
Food and Drug Administration,
Nagpur Division, Nagpur
Maharashtra State. :: RESPONDENT
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Shri Mukesh Shukla, Advocate for the applicants.
Shri D. P. Thakre, A. P. P. for the respondent-State.
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CORAM: R. M. BORDE, J.
DATE : 23rd July, 2010.
Oral Judgment
1. Heard the respective Counsel appearing for the parties.
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2. Rule. With the consent of the parties, the application is taken up for final disposal at the admission stage.
3. The applicants are praying for quashment of criminal proceedings initiated in pursuance of lodging of complaint by the respondent herein before the Additional Chief Judicial Magistrate, Nagpur in respect of commission of offences under Section 7(1) read with Sections 2(ia) (a), 2(ia) (m) punishable under Section 16 of the Prevention of Food Adulteration Act, 1954 (for short, the Act, 1954). The applicants No. 1 to 4 and 6 to 9 are the Directors of respondent No. 5- the Company. Food Inspector Mr. S. S. Deore, the complainant before the trial Court, visited the premises of M/s. Guru Nanak Kirana and General Stores situated at Pawani, Tahsil Ramtek, District Nagpur and drew sample of Kachi Ghani mustard oil. Dalda Brand kept for sale in the grocery shop. The Food Inspector purchased 4500 ml. of mustard oil contained in 9 packed bottles each containing 500 ml. He served notice as contemplated under Section 14A of the Act, 1954 upon a person who was present in the shop requiring him to disclose the name of the persons from whom he purchased the said mustard oil. The samples taken by the Food Inspector were sent for analysis to the Public Analyst and Test Report was received on 24/02/2009 disclosing therein that the samples taken by the Food Inspector and sent for analysis do not confirm to the prescribed standards. Thereafter, the Food Inspector submitted all the papers to the Sanctioning Authority with a view to secure sanction for prosecuting the accused.
The complainant received order in respect of sanction from the higher officials on 06/01/2010 and thereafter he proceeded to file complaint before the Court of Additional Chief Judicial Magistrate, Nagpur on 20/02/2010. On the same day, Local Health Authority sent notice under Section 13(2) of the Act, 1954 to the ::: Downloaded on - 09/06/2013 16:11:55 ::: appln658.10.odt 4 / 15 accused informing them of presentation of the complaint to the Court.
4. The applicants, who are Directors of the Company, are raising challenge to the entertainability of the complaint on two grounds. Firstly, it is contended that although the samples were drawn by the Food Inspector on 03/01/2009 and the report of the Public Analyst was received on 24/02/2009, the applicants-accused were noticed under Section 13(2) of the Act, 1954 after about a year thereafter on 22/02/2010. The delay occasioned in sending notice as contemplated by Section 13(2) has an effect of taking away the valuable rights available to the accused in requiring Local Health Authority to send the samples for analysis to the Central Food Laboratory. It is contended that as a result of late transmission of notice under Section 13(2), the right accrued to the accused to get the food articles analysed through the Central Food Laboratory is taken away. It is also further contended that the notice under Section 13(2) issued by the Local Health Authority is after the expiry of the period prescribed for user of the food article.
The food article is stated to be best suited for use up to 22/4/2009, however, the notice as contemplated by Section 13(2) is issued to the accused ten months after the expiry date. It is contended that on this count alone the prosecution launched against the accused shall have to be quashed.
5. The another objection to the entertainability of the complaint is on the ground of failure by the complainant to adhere to the provisions of Section 17(4) of the Act, 1954. It is contended that the prosecution is launched against all the Directors of the Company and there is no allegation in the complaint as regards the commission of offence with the consent or connivance of or attributable to any of the Directors nor there is allegation in respect of any neglect on the part of any of the Directors. It is contended that in absence of any material particulars in ::: Downloaded on - 09/06/2013 16:11:55 ::: appln658.10.odt 5 / 15 respect of the offence having been committed with the consent or in connivance attributable to any of the Directors or because of neglect of any of the Directors, the prosecution cannot be allowed to be proceeded. However, in absence of any such allegation, it would not be permissible to prosecute the Directors of the Company.
6. The Counsel appearing for the applicants has placed reliance on a judgment delivered by the learned Single Judge of this Court in Criminal Application No. 3439 of 2006 along with companion applications on 21/6/2010. Reliance is also placed on a judgment in the matter of Shri M. Ismail Vs. The State of Maharashtra reported in 2007(2) FAC 445 delivered by the learned Single Judge of this Court so also the judgment in the matter of Shri Rohit Mull and another Vs. State of Goa reported in 2006(1) FAC 57 delivered by the learned Single Judge of Goa Bench of Bombay High Court. So also, judgment in the matter of Municipal Corporation of Delhi Vs. Ghisa Ram reported in 1975(1) FAC 186 delivered by the Apex Court. It is urged by the Counsel appearing for the applicants that the food articles sent for analysis were best for human consumption or use up to 22/4/2009. The sample in respect of the food article, although was drawn before the best before use date, the result of the analysis was communicated and notice as contemplated by Section 13(2) was issued to the applicants much after the expiry of 'best before date' prescribed on the packets. It is contended that, right vested with the accused to have the sample analysed by the Central Food Laboratory is a valuable right and because of late transmission of notice as contemplated by Section 13(2) of the Act, 1954, valuable right vested with the accused is defeated. In view of these circumstances, it is contended that the prosecution against the accused cannot be permitted to be proceeded.
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7. Section 13(1) and (2) of the Prevention of Food Adulteration Act, 1954 reads thus;
"13. Report of public analyst.- (1) The public analyst shall deliver, in such form as may be prescribed, a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis.
(2) On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14 A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.....".
8. Learned Counsel appearing for the applicants further contends that the article of which the sample is secured by the Food Inspector is not appropriate for analysis after the expiry of 'best before' date.
9. The phraseology, "best before" is defined in rule 32(m) explanation-VIII of The Prevention of Food Adulteration Rules, 1955, which reads thus:
Explanation VIII.- "best before" means the date which signifies the end of the period under any stated storage conditions during which the product shall remain fully marketable and shall retain any specific qualities for which tacit or express claims have been made and beyond that date the food may still be perfectly ::: Downloaded on - 09/06/2013 16:11:55 ::: appln658.10.odt 7 / 15 satisfactory.
Whereas; phraseology - 'use - by date" or 'expiry date' is also defined in rule 32(m) explanation VIIIC of the Rules which reads thus:
Explanation VIIIC. - "use - by date" or "recommended last consumption date" or "expiry date" means the date which signifies the end of the estimated period under any stated storage conditions, after which product probably will not have the quality attributes normally expected by the consumers and the food shall not be marketable."
10. On bare perusal of the provisions contained in Rule 32(m) and the meaning attached to phraseology- "best before" is that; the period during which the product shall remain full marketable and shall retain in specific qualities for which tacit or express claims have been made. It is further clarified that beyond the prescribed date also the food article may still be perfectly satisfactory. Whereas; the meaning attached to the "expiry date" signifies the end of estimated period under any stated storage conditions, after which product probably will not have the quality attributes normally expected by the consumers and further that the food shall not be marketable. A distinction has to be drawn in respect of phraseology "best before" and "expiry date" noted on the container of the food product. In the instant matter, the food item which is edible oil, is best for use before the specified date, however, it does not mean that the product cannot be perfectly satisfactory beyond the prescribed date where no expiry date has been shown on the label of the food article.
11. The contentions raised by the applicants, while considering the arguments based on the factor of delay attributable to the prosecution in sending notice as contemplated by Section 13(2) of the Act, which, according to the applicants, ::: Downloaded on - 09/06/2013 16:11:55 ::: appln658.10.odt 8 / 15 results in defeating the right accrued to the accused has to be construed in reference to the food article which is available for analysis. The cases on which reliance is placed by the applicants relate to food articles such as; Cadbury chocolate or milk product. It is to be noted that in every case, delay occurring in sending sample and sending notice as contemplated by Section 13(2), will not have effect of defeating rights accrued to the accused for securing the product analysed from the Central Food Laboratory. A consistent view of the Apex Court that while considering the factor of delay in sending notice as contemplated by Section 13(2), the nature of product shall have to be taken into consideration. In the instant matter, it cannot be said that sending delayed notice as contemplated by Section 13(2) has occasioned in causing prejudice to the accused. It would be appropriate at this stage to refer to the judgment on which reliance is placed by the applicants in M. Ismail's case. The food article which is said to be adulterated is cadbury chocolate. In the reported matter notice as contemplated by Section 13(2) was transmitted to the accused therein after more than three years. It is observed by the Court in para 8 of the judgment thus;
"The prosecution has shown a completely detached and totally lax approach. A food article like chocolate cannot be preserved for a long period of time of two and half years without any preservative being added. No preservative has been added in the present case. In such case, the article of food will not remain in a fit condition to be sent for analysis after such a long period. In the present case two and half years had passed since the taking of sample and filing the complaint, the shelf life of the chocolate is only one year, after two and half years, it makes no sense to make an application under Section 13(2) for sending it to Central Food Laboratory because by then even if a product was not earlier deteriorated it would deteriorate. Moreover, no preservative had been added. In such case, the product is bound to get spoiled and develop fungus ::: Downloaded on - 09/06/2013 16:11:55 ::: appln658.10.odt 9 / 15 etc. Moreover, there is nothing to show that the accused was informed of the result of the Public Analyst, for him to exercise his right under Section 13(2). Hence, the gross delay in filing the complaint, in the facts and circumstances of the present case is sufficient to cause prejudice to the accused. The benefit of this delay should not be given to the prosecution, but must go to the accused. I am fortified in my opinion because the legislature now having seen the wisdom of amending Section 13 has made it compulsory that as soon as the report of the Public Analyst is received, it must be furnished to the accused within ten days and within five days thereafter, the accused should make an application that the sample kept by him or by the authorities may be sent to the Central Laboratory. For such delay the benefit of doubt should go to the accused. If the provisions of the Act or the Rules are not complied with strictly and which provisions of the Act and the Rules are held mandatory by this Court the prosecution is not entitled to get a conviction of the accused."
12. It would be evident on perusal of the judgment that life of the food article was stated to be only one year whereas the complaint was presented in the reported matter after about three years after drawing the samples. The Court in these circumstances recorded finding that delayed presentation of the complaint and compliance of requirement under Section 13(2) has caused prejudice to the accused. Similar is the case in the matter of Shri Rohit Mull and another Vs. State of Goa, wherein also the food articles analysed were cadbury chocolate. A reference is made to a judgment in the case of Municipal Corporation of Delhi Vs. Ghisa Ram. Relying on the judgment, it is contended that when a valuable right is conferred by Section 13(2) of the Act on the vendor to have the sample analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that right will not be denied to him.
::: Downloaded on - 09/06/2013 16:11:55 :::appln658.10.odt 10 / 15 The Apex Court has observed that the right is valuable one because the certificate of the Director supersedes the report of the public analyst and it is treated as conclusive evidence of its contents. It is further observed that in a case, where there is denial of this right on account of the deliberate conduct of the prosecution, the vendor is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst though that report continues to be evidence in the case of the facts contained in it. The Apex Court has taken into consideration the aspect of delay in the background of the fact that the food article sent for analyst was curd of cow's milk. In paragraph 8 of the judgment the Apex Court has observed thus :
"We are not to be understood as laying down that, in every case where the right of the vendor to have his sample tested by the Director of the Central Food Laboratory is frustrated, the vendor cannot be convicted on the basis of the report of the Public Analyst. We consider that the principle must however be applied to cases where the conduct of the prosecution has resulted in the denial to the vendor of any opportunity to exercise this right. Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible.."
Thus, it is clear that in every matter the aspect of delay cannot be a sole criteria, however, it has also to be taken into account as to whether any prejudice is shown to have been caused to the accused.
13. The Assistant Public Prosecutor appearing for the respondent-State contends that in the given set of facts, it cannot be said that any prejudice is caused to the accused much less the aspect of prejudice on account of delay in transmission of notice will not itself be a ground for quashing the proceedings at this stage. It is contended that considering the nature of the food article, it cannot be said that ::: Downloaded on - 09/06/2013 16:11:56 ::: appln658.10.odt 11 / 15 the same gets deteriorated after "best before date". It is a matter which is required to be considered at the time of analysis by the Central Food Laboratory, if at all, the accused prefers to exercise their right and at that stage only i.e. at the stage of analysis of food article, it could be examined by analyst as to whether the article in question is fit for analysis or it is in decomposed state. It is contended that the food article sent for analysis being edible oil, no preservatives are required to be added for the purpose of storing the product. My attention is invited to rule 53 of the Prevention of Food Adulteration Rules, 1955 which provides classification of preservatives. Edible oil is Class-I preservative as prescribed by rule rule 53 of the Rules. Thus, the food article which was sent for analysis was itself a preservative as classified in Rule 53 of Rules. It cannot be assumed that the said food article gets damaged after a prescribed period.
Considering the nature of food article, which is alleged to be adulterated, the contention raised by the applicants cannot be accepted. In the given circumstances, it cannot be said that any prejudice is caused to the accused-
applicants because of the delay in transmitting the notice under Section 13(2) nor it can be assumed that any right of the applicants herein is rendered negatory.
14. Although, the first limb of argument canvassed by the applicants is not acceptable, the applicants are bound to succeed on the ground of non compliance of provisions of Section 17 of the Act. It is to be noted that the applicants are the Directors of M/s Bunge India Pvt. Ltd. Applicant No. 5 and 10 are Company registered under the Companies Act. In case of offence committed by the Companies, provision of Section 17 is attracted. Sub-section (4) of Section 17 provides thus;
"Notwithstanding anything contained in the foregoing sub- sections, where an offence under this Act has been committed by a ::: Downloaded on - 09/06/2013 16:11:56 ::: appln658.10.odt 12 / 15 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...."
Section 17(4) provides that in case of commission of offence by the company so as to make a director liable, it has to be contended that the offence has been committed with the consent or connivance or attributable to or as a result of neglect on the part of such director. In the instant case, on perusal of the complaint, there is no allegation that the offence is committed at the instance of any of the directors or as a result of neglect or connivance of such director.
Nor there is any allegation that any of the act which construed an offence is attributable to any of the directors.
15. It is contended by the prosecution that a notice was issued to the company calling upon them to submit the name of person who is responsible for the business activities as contemplated by Section 17(2) of the Act. It is further contended that the company, in spite of notice, did not provide name of the nominee and as such all the directors are required to be held responsible.
However, on perusal of Section 17(4) of the Act, it is clear that only those directors against whom there is proof of commission of any offence either with the consent or connivance or attributable as a result of neglect, such director shall be liable to be proceeded. It is for the prosecution to find out as to what is the role of a director or as to who is responsible for commission of the offence. In absence of any such contention in the complaint, it cannot be taken that all the directors of the Company shall be held to be responsible.
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16. The Counsel appearing for the applicants seeks to place reliance on a judgment in the matter of Iqbal Abdul Khaliq Ahmed & others Vs. State of Maharashtra reported in 2003(1) FAC 321 as well as judgment in the matter of Keki Bomi Dadiseth & others Vs. The State of Maharashtra reported in 2002(1) FAC 294. It is observed by the learned Single Judge in paragraphs 35 and 36 of the judgment in the matter of Keki Bomi Dadiseth Vs. State of Maharashtra, as under:
"Under the scheme of Section 17, when the offence is committed by the Company, the person, who is nominated under sub-section (2) of Section 17 would be a person in-charge of and responsible to the Company for conduct of business of the Company and can be proceeded against and punished accordingly. However in the absence of any nomination by the Company, every person, who at the time of commission of offence was in-charge and responsible to the Company for conduct of business of the Company can be proceeded against and punished accordingly for the offence committed by the Company. The person in-charge of and responsible for conduct of business of the Company can be anybody including Directors of the Company. However, it must be alleged in the complaint in this regard in order to show at the threshold as to who are persons in-charge of and responsible for conduct of business of the Company, In the absence of any allegations in the complaint, in a given set of circumstances, it will not be possible to connect the accused with the crime in question and if the allegations in this regard are missing in the complaint itself, then proving of those facts by adducing evidence does not arise. In such circumstances, it boils down to a situation where even if the allegations in the complaint are accepted as they are, without adding or subtracting anything from it, it would not either connect the accused with crime in question nor would make out even a prima facie case against the ::: Downloaded on - 09/06/2013 16:11:56 ::: appln658.10.odt 14 / 15 accused and in such situation, it will not be expedient to allow such prosecution to go on, which would amount to abuse of process of the Court apart from the fact that accused will have to undergo tremendous agony and pain for such proceedings.
Under the scheme of Section 17 of the Act, there are three categories of individuals, who can be proceeded against and punished, if found guilty for the offence committed by the Company. Those are person nominated by the Company, person in-charge of and responsible to conduct of business of the Company and third is in addition to these two, any Director of the Company, if it is proved that offence has been committed with the consent or connivance of or is attributable to any neglect on the part of such Directors. Similarly, the persons nominated may or may not be a Director of the Company. He can be anybody whomsoever the Company feels it appropriate to nominate. Similar is the case in respect of person in-charge of and responsible to conduct of business of the Company. However, by virtue of sub-
section (4) of Section 17, Directors of the Company are also liable to be prosecuted in the contingencies referred to in sub-section (4) notwithstanding anything contained in sub-section 1(a)(i)(ii) of Section 17 of the Act. However, in order to bring home guilt, averments, allegations or statements to that extent in this regard must find place in the complaint, which is filed by the Food Inspector in the competent criminal Court after due investigation. The complaint must prima facie demonstrate nexus between Director and crime committed within the parameters of sub-section (4) of Section 17. What is expected is at least the allegations in the complaint that offence is committed under the provisions of the Act with the consent or connivance of such Director or same is attributable to any neglect on the part of such Director. In the absence of such allegations, it would be not only difficult but impossible to hold even prima facie that allegations in the complaint make out any case against such Director."::: Downloaded on - 09/06/2013 16:11:56 :::
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17. Considering the ratio laid down by this Court in Keki Bomi Dadiseth's matter and considering further the fact that the prosecution has not given any particulars in the complaint as regards the complicity of any of the Directors in the crime, it cannot be taken that all the Directors of the Company are responsible for commission of crime. In this view of the matter, the criminal application deserves to be allowed partly and the same is accordingly allowed partly. The prosecution launched against applicants No. 1 to 4 and 6 to 9 only shall be deemed to have been quashed.
Rule is accordingly made absolute.
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