Allahabad High Court
M/S Chambal Fertilizers And Chemicals vs State Of U.P.And Another on 7 November, 2019
Author: Vivek Kumar Singh
Bench: Vivek Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 69 Case :- APPLICATION U/S 482 No. - 28010 of 2008 Applicant :- M/S Chambal Fertilizers And Chemicals Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Swapnil Kumar,Bhuwan Raj,M/S Arun Khosla & Associa Counsel for Opposite Party :- Govt. Advocate Hon'ble Vivek Kumar Singh,J.
Heard Sri Samit Gopal,learned senior Advocate assisted by Sri Bhuwan Raj, learned counsel appearing for the applicant and Sri Sanjay Singh, learned AGA for the State and also perused the record brought on record.
This application under Section 482 Cr.P.C. has been filed for quashing the complaint bearing No.5435 of 2006, State through Insecticide Inspector, Sonbahdra Vs. Shri Jai Prakash and Managing Director Chemical Fertilizer and Chemicals Ltd. as well as entire proceeding of the aforesaid complaint pending in the court of C.JM.,Sonbhadra and also the NBW issued against the petitioner company.
Learned counsel for the applicant contended that the petitioner company is inter-alia conducting the business of manufacturing the Urea. It is next contended that the petitioner company has been implicated on the basis of allegation of its being the manufacturer of the offending infanticide, sample of which was taken by respondent no.2. It is further contended that the petitioner company is not the manufacturer of of the said product.It is also contended that the respondent no.2 has not impleaded the company and the report has been lodged on the basis of infanticide report of first chemical examiner. It is further contended that unless the company is made an accused, the complaint can not be filed. The sample was also not sent to the Central Laboratory for its chemical examination.
Learned counsel for the applicant has drawn the attention of this Court towards the infanticide Act, 1968 wherein paragraph 33 provides as under:
33. Offences by companies.?
(1) Whenever an offence under this Act has been committed by a company, every person who at the time the offence was committed, was in charge of, or 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: Provided that nothing contained in this sub-section shall render any such person liable to any punishment under 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. tc "Provided that nothing contained in this sub-section shall render any such person liable to any punishment under 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. tc "(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 tc" (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. tc" (b) "director", in relation to a firm, means a partner in the firm."
Learned counsel for the applicant contended that the offence has been committed by the Company and the applicant has been sought to be made vicariously liable merely because at the relevant point of time he was holding the office of Managing Director of the Company.
Learned counsel for the applicant has relied upon a decision of Hon'ble Apex Court in the case of Managing Director M/s Castrol India Limited Vs. State of Karnataka 2017 0 Supreme(SC) 650 Criminal Appeal No. 1062 of 2017 (Arising out of SLP(Crl.) No. 7929 of 2012) wherein It was held that taking into account the provisions of Section 74 of the Act, the proceedings against the accused-appellant was quashed and appeal was allowed.Paragraph no.7 of the judgement provides as under:
7. Section 74 of the Standards of Weights and Measures Act, 1976 which is in the following terms engrafts the principle of vicarious liability for offences committed by a Company.
"74. Offences by companies and power of court to publish name, place of business, etc. of companies convicted - (1) If an offence under this Act is 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: Provided that nothing contained in this sub-section shall render any such person liable to punishment if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence."
Learned counsel for the applicant has also placed reliance on a judgement of the Apex Court in the case of.M/s Gupta Chemicals Pvt. Ltd. And Ors. vs State Of Rajasthan And Anr wherein reported in 2002 4 (crimes) (SC) 33 in Criminal Appeal No. 529 of 2002 wherein the proceedings against the accused-appellant was quashed and appeal was allowed. it was held that from perusal of the aforequoted provisions it is manifest that ordinarily in the absence of any material to the contrary, the report of the insecticides analyst will be accepted as final and conclusive of the material contained therewith. This is however subject to the right of the accused to have the sample examined by the central insecticides laboratory provided he communicates his intentions for the purpose within 28 days of the receipt of the copy of the report. It needs no emphasis that this right vested under the statutes valuable for the defence, particularly in a case where the allegations are that the material does not conform to the prescribed standard. As noted earlier in the present case the appellants had intimated the insecticide inspector their intention to have the sample tested in the central insecticides laboratory within the prescribed period of 28 days of receipt of the copy of the state analyst report, yet no step was taken by the inspector either to send the sample to the central insecticides laboratory or to file the complaint in the court with promptitude in which case the appellants would have moved the magistrate for appropriate order for the purpose. The resultant position is that due to sheer inaction on the part of the inspector, it has not been possible for the appellants to have the sample examined by the central insecticides laboratory and in the meantime, the shelf-life of the sample of insecticide seized had expired and for that reason no further step could be taken for its examination. In the circumstances, we are of the view that continuing this criminal prosecution against the appellant will be a futile exercise and abuse of the process of court.
Learned counsel for the applicant submits that the present case is squarely covered by the judgements of the Apex Court in the cases referred to above.
Learned counsel for the respondent no.2 does not dispute it.
Accordingly the application is allowed and the complaint bearing No.5435 of 2006, State through Insecticide Inspector, Sonbahdra Vs. Shri Jai Prakash and Managing Director Chemical Fertilizer and Chemicals Ltd. as well as entire proceeding of the aforesaid complaint pending in the court of C.JM.,Sonbhadra and also the NBW issued against the petitioner company,are hereby quashed.
There is no order as to costs.
Order Date :- 7.11.2019 IA