Bombay High Court
Municipal Corp. Of The City Of Amravati ... vs Ghanshyam Uttamchand Batra Vendor Of ... on 31 July, 2018
Author: Manish Pitale
Bench: Manish Pitale
3107WP480.10-Judgment 1/21
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRI. WRIT PETITION NO. 480 OF 2010
PETITIONER :- Municipal Corporation of the City of
Amravati, through its Food Inspector Shri
O.V.Charjan, aged about 55 years,
occupation service as a Food Inspector,
Amravati, Tq. And District Amravati.
...VERSUS...
RESPONDENTS :- 1. Ghanshyam Uttamchand Batra, Vendor
of M/s. Ashish Trading Company,
Amravati, Gandhi Chowk, Amravati.
2. Mohanlal Uttamchand Batra, Proprietor
of M/s. Ashish Trading Company,
Amravati, Gandhi Chowk, Amravati.
3. Rasiklal Manikchand Dhariwal,
Proprietor of M/s. R.M.Dhariwal,
Godown, Plot No.7, Khadgaon Road,
Wadi, Districdt Nagpur.
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4. Rasiklal Manikchand Dhariwal (Director)
Punit Apartment, Lakaki Marg, Pune, P.
S. Decon Pune.
5. Prakash Rasiklal Dhariwal (Director)
Ashirwad Bunglow, Ghodnadi, Tq.
Shirur, Districdt Pune, P. S. Shirur, Pune.
6. Mr.Jagdish Mohanlal Joshi, J.M.Joshi,
House (J.M.Joshi Group of Companies),
5th Floor, Orchered Enclave, Hiranandani
Garden, Pawai, Mumbai - 76.
Mr. Jagdish Mohanlal Joshi, r/o 401,
Siddharth Darshan, Opposite Railway
Station, Thane (West).
7. Subhash Hastimal Lodha, 10, Ruturaj
Society, Pune, Satar Road, Pune - 37.
8. Harilal Hanuman Bangasmalu,
Nanapeth, Pune - 2, Director of M/s.
Dhariwal Tobacco Products Ltd.,
Ghodnadi, Tq. Shirur, District Pune.
9. Firm M/s. Dhariwal Tobacco Products
Ltd., Ghodnadi, Tq. Shirur, District Pune,
P. S. Shirur.
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Mr. J. B. Kasat, counsel for the petitioner.
Mr. Rajnish Vyas, counsel for the respondents.
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CORAM : MANISH PITALE, J.
DATE : 31.07.2018. O R A L J U D G M E N T
By this writ petition, the petitioner (Municipal Corporation of City of Amravati) has challenged order dated 24/02/2010 passed by the Chief Judicial Magistrate, Amravati, whereby original accused Nos.4 to 9, being Directors of respondent No.9 herein (M/s.Dhariwal Tobacco Products Limited), were discharged. The subsequent judgment and order dated 16/06/2010 passed by the Sessions Court, Amravati dismissing the revision petition filed by the petitioner herein, is also challenged in this writ petition.
2. The facts in brief leading to filing of this writ petition are that Food Inspector of the petitioner-Corporation filed a complaint under various provisions of Prevention of Food Adulteration Act, 1954 against the respondents wherein Regular ::: Uploaded on - 03/08/2018 ::: Downloaded on - 05/08/2018 01:02:49 ::: 3107WP480.10-Judgment 4/21 Criminal Case No.52 of 2000 was registered before the Court of Chief Judicial Magistrate, Amravati on the ground that when a visit was made by the complainant Food Inspector to the shop of accused No.1 selling pan materials including Gutkha, it was found that the samples collected were adulterated within the meaning of sections 2(ia) and 7(i) of the aforesaid Act read with Rule 62 of the Rules framed there under. In the said complaint, the vendor, the proprietor of the vendor and directors of respondent No.9 were arrayed as accused. Evidence before charge was recorded.
3. Thereafter, by impugned order dated 24/02/2010, charge was framed only against accused Nos.1 to 3, while the directors of respondent No.9 were discharged and respondent No.9-Company was also discharged, on the ground that there were documents on record showing that nomination had been made by respondent No.9-Company in the name of one Ramnath Dayama and that Local (Health) Authority had been intimated about the same thereby satisfying requirements of the Act and the Rules framed thereunder. It was held that when such valid nomination was made, the respondent-Directors and the Company could not be arrayed as accused.
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4. Aggrieved by the discharge of respondent No.9- Company and its directors, the petitioner filed Criminal Revision No.32 of 2010, before the Sessions Court at Amravati pointing out that the nomination letter at Exhibit-94, dated 25/08/1997 purportedly nominating the said Mr. Dayama, could not have been relied upon because it was issued on 25/08/1997 while the incident in the present case i.e. visit by the Food Inspector of the petitioner and collection of samples was already done on 31/07/1997. It was also contended that the said nomination had not been sent to the Local (Health) Authority of Amravati and in the absence of such intimation with proper acknowledgment from the Authority, the said letter at Exhibit-95 could not become the basis for discharge of the respondents herein. But, the Sessions Court rejected the said contentions of the petitioner and by relying upon the nomination letter dated 25/08/1997 Exhibit-95 issued in favour of Mr. Dayama, the revision petition was dismissed.
5. Mr. J.B.Kasat, learned counsel appearing on behalf of the petitioner-Corporation, submitted that the Magistrate as well as the Sessions Court failed to appreciate the scope of section 17 ::: Uploaded on - 03/08/2018 ::: Downloaded on - 05/08/2018 01:02:49 ::: 3107WP480.10-Judgment 6/21 of the said Act, particularly sub-section (2) thereof read with Rule 12-B of the Rules framed thereunder. It was submitted that the nomination letter dated 25/08/1997 along with Form-VIII specified under the said Rules could not have been relied upon by the respondents firstly, because the collection of samples had already taken place on 31/07/1997 and secondly, because the said nomination letter had been sent to the Local (Health) Authority at Pune and that the Local (Health) Authority, Amravati was never informed about such nomination. It was submitted that on a proper reading of the aforesaid provisions of the said Act and Rules, it was obvious that the Courts below had committed a grave error and that since there was no valid nomination in the present case, the respondents had been correctly arrayed as accused in the complaint filed by the petitioner.
6. On the other hand, Mr. Rajnish Vyas, learned counsel appearing on behalf of the respondents, submitted that the aforesaid nomination letter dated 25/08/1997 was sufficient in the present case because the Local (Health) Authority at Pune was informed about the same and that there was acknowledgment from the said Authority. Reliance was placed on Notification ::: Uploaded on - 03/08/2018 ::: Downloaded on - 05/08/2018 01:02:49 ::: 3107WP480.10-Judgment 7/21 dated 15/04/1983 issued by the Government of Maharashtra, whereby Local (Health) Authority had been nominated for various districts. According to the learned counsel, when the Local (Health) Authority at Pune, where the manufacturing unit of respondent No.9-Company was situated, had been informed about the nomination, the requirement of the aforesaid Act and Rules had been satisfied. On this basis, it was contended that the Courts below had not committed any error in the present case. It was further submitted that under section 17(4) of the Act, the petitioner-Corporation was required to plead and demonstrate in its complaint that the respondents-directors were responsible for the functioning and manufacturing activities of respondent No.9- Company at the relevant time, when the samples were collected by the Food Inspector of petitioner-Corporation. It was submitted that only a bald statement was made in the complaint, which would not suffice to array the respondents herein as accused before the Magistrate.
7. Heard counsel for the parties. In order to appreciate the contentions raised on behalf of the rival parties, it would be appropriate that the relevant provisions of the aforesaid Act and ::: Uploaded on - 03/08/2018 ::: Downloaded on - 05/08/2018 01:02:49 ::: 3107WP480.10-Judgment 8/21 Rules are reproduced. Section 17 of the said Act reads as follows:
"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 (hereafter 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 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) Any company may, by order in writing, authorise any of its directors or managers (such manager being employed mainly in a managerial or supervisory ::: Uploaded on - 03/08/2018 ::: Downloaded on - 05/08/2018 01:02:49 ::: 3107WP480.10-Judgment 9/21 capacity) to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission by the company of any offence under this Act and may give notice to the Local (Health) Authority, in such form and in such manner as may be prescribed, that it has nominated such director or manager as the person responsible, alongwith the written consent of such director or manager for being so nominated.
Explanation.- Where a company has different establishments or branches or different units in any establishment or branch, different persons may be nominated under this sub-section in relation to different establishments or branches or units and the person nominated in relation to any establishment, branch or unit shall be deemed to be the person responsible in respect of such establishment, branch or unit.
(3) The person nominated under sub-section (2) shall, until-
(i) further notice cancelling such nomination is received from the company by the Local (Health) Authority; or
(ii) he ceases to be a director or, as the case may be, manager of the company; or
(iii) he makes a request in writing to the Local (Health) Authority, under intimation to the company, to cancel the nomination [which request shall be complied ::: Uploaded on - 03/08/2018 ::: Downloaded on - 05/08/2018 01:02:49 ::: 3107WP480.10-Judgment 10/21 with by the Local (Health) Authority], whichever is the earliest, continue to be the person responsible:
Provided that where such person ceases to be a director or, as the case may be, manager of the company, he shall intimate the fact of such cesser to the Local (Health) Authority;
Provided further that where such person makes a request under clause (iii), the Local (Health) Authority shall not cancel such nomination with effect from a date earlier than the date on which the request is made.
(4) Notwithstanding anything contained in the foregoing sub-sections, 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 [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.
Explanation.- For the purposes of this section-
(a) "company", means any body corporate and includes a firm or other association of individuals;::: Uploaded on - 03/08/2018 ::: Downloaded on - 05/08/2018 01:02:49 :::
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(b) "director", in relation to a firm, means a partner in the firm; and
(c) "manager", in relation to a company engaged in hotel industry, includes the person in charge of the catering department of any hotel managed or run by it.]
8. Rule 12-B of the Rules framed under the said Act reads as follows:
"12-B. Form of nomination of Director or Manager and his consent under section 17.- (1) A company may inform the Local (Health) Authority of the concerned local area, by notice in duplicate, in Form VIII containing the name and address of the Director or Manager, who has been nominated by it under sub-section (2) of section 17 of the Act to be in charge of, and responsible to, the company for the conduct of the business of the company or any establishment, branch or unit thereof:
Provided that no such nomination shall be valid unless the Director or Manager who has been so nominated, gives his consent in writing and has affixed his signature, in Form VIII in duplicate in token of such consent.
(2) The Local (Health) Authority shall sign and return on copy of the notice in Form VIII of the company to signify the receipt of the nomination and retain the second copy in his office for record."::: Uploaded on - 03/08/2018 ::: Downloaded on - 05/08/2018 01:02:49 :::
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9. A perusal of the aforesaid provisions shows that definition of "Local (Health) Authority" also becomes relevant in the present case. It is defined under section 2(viiia) of the said Act as follows:
"2(viiia) 'Local (Health) Authority", in relation to a local area, means the officer appointed by the Central Government or the State Government, by notification in the Official Gazette, to be in charge of Health administration in such area with such designation as may be specified therein."
10. A conjoint reading of the aforesaid provisions shows that when a company nominates one of its directors or managers in terms of section 17 of the said Act to be in charge of, and responsible to, the company for the conduct of the business, such nomination is required to be intimated to the "Local (Health) Authority" as defined under the said Act and an acknowledgment from the said Authority is required to be obtained. Once these steps are undertaken, a valid nomination comes into existence. Section 17(1)(a)(ii) provides that where no person has been so nominated, every person who is in-charge and responsible for the ::: Uploaded on - 03/08/2018 ::: Downloaded on - 05/08/2018 01:02:49 ::: 3107WP480.10-Judgment 13/21 conduct of business of the company at the time of the offence shall be deemed to have committed the offence along with the company. In any case, either the person nominated or when no person is nominated then all such persons, who are responsible for the conduct of the business of the company, along with the company shall be deemed to be guilty of the offence, under the said provisions.
11. The interpretation of the said provisions of the Act and the Rules came up for consideration before this Court in the case of Azim H. Premji v. State of Maharashtra, reported in 2002 (1) Mh.L.J. 668. In the said case also a similar argument had been advanced on behalf of directors of the company. It was contended that when nomination form as prescribed under Rule 12-B of the said Rules had been filed with Chief Officer of a particular municipal council in the State of Maharashtra within the jurisdiction of which the manufacturing unit of the company was situated, it was sufficient for the purpose of whole of Maharashtra and there was no need or necessity to file nomination with any other Local (Health Authority in Maharashtra. After analyzing the aforesaid provisions of the said Act and Rules, the said contention ::: Uploaded on - 03/08/2018 ::: Downloaded on - 05/08/2018 01:02:49 ::: 3107WP480.10-Judgment 14/21 was repelled by this Court. The relevant portion of the said judgment, reads as follows:
"19. Therefore, in my opinion, it follows that a nomination is required to be sent to the Local (Health) Authority of the area in which the godown from which the offending goods are recovered is situated. Since the material on record was not sufficient in the case before the Apex Court, the matter was remanded to the trial Magistrate to enquire into the question whether the nomination forms nominating H. Dayani and Dr. Nirmal Sen were received and acknowledged by the Local (Health) Authority competent to receive and acknowledged the same (emphasis added). It was further observed that this question shall be decided as a preliminary question and if Magistrate comes to the conclusion that the nomination had been acknowledged by the competent Local (Health) Authority, the proceedings will be dropped against the Directors of the company. If it is found that the prescribed form had been acknowledged by the person other than the competent Local (Health) Authority, the Magistrate shall proceed against all persons including Directors, nominated persons and company.::: Uploaded on - 03/08/2018 ::: Downloaded on - 05/08/2018 01:02:49 :::
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20. Rule 12-B provides for form of nomination of Director or Manager and his consent under section 17 and reads as under :-
"12-B. Form of nomination of Director or Manager and his consent under section 17.- (1) A company may inform the Local (Health) Authority of the concerned local area, by notice in duplicate, in Form VIII containing the name and address of the Director or Manager, who has been nominated by it under sub-section (2) of section 17 of the Act to be in-charge of and responsible to the company for the conduct of the business of the company or any establishment, branch or unit thereof:
Provided that no such nomination shall be valid unless the Director or Manager who has been so nominated, gives his consent in writing and has affixed his signature, in Form VIII in duplicate in token of such consent.
(2) The Local (Health) Authority shall sign and return on copy of the notice in Form VIII of the company to signify the receipt of the nomination and retain the second copy in his office for record."
Under Rule 12-B, the company is required to inform the Local (Health) Authority of the concerned local area by notice in duplicate in Form VIII the nominee to be appointed under sub-section (2) of section 17. Section 17(2) of the Act also provides for notice to the Local ::: Uploaded on - 03/08/2018 ::: Downloaded on - 05/08/2018 01:02:49 ::: 3107WP480.10-Judgment 16/21 (Health) Authority. Section 17(3) of the Act also emphasises the role of the Local (Health) Authority. Rule 2 of Rule 12-B of the Rules provides that the Local (Health) Authority shall sign and return a copy of the notice in Form-VIII to the company to signify receipt of nomination and retain a second copy in his office for record.
21. From the above provisions, it is clear that nomination is required to be filed with the Local (Health) Authority having jurisdiction over the area where manufacture for sale, storage for sale, sale or distribution for sale is being carried out. Therefore, the contention of the learned Advocate for the applicants that the nomination filed at Amalner with the Local (Health) Authority of the said area is sufficient for the purpose of whole of State of Maharashtra is without any merit. In Criminal Applications No.765 of 2000; 579 of 2001; and 584 of 2001, the samples have been taken by the Food Inspector from the godown of the company at Wadi where the article of food in question was stored for sale which has been found to be adulterated. In Criminal Application Nos.580/2001 and 582/2001 invoice INA 1018 dated 20-09-1997 shows that the Vanaspati in question of which samples were taken had been sold from the godown at Wadi, Nagpur. The filing of the nomination at Amalner would not, therefore, absolve the directors ::: Uploaded on - 03/08/2018 ::: Downloaded on - 05/08/2018 01:02:49 ::: 3107WP480.10-Judgment 17/21 namely, the applicants of their prosecution in these cases, unless there is a valid nomination filed with the Local (Health) Authority having jurisdiction at Wadi."
12. Applying the said position of law to the present case, it becomes clear that the impugned order passed by the Courts below cannot be sustained. In the present case, the document on which reliance is placed on behalf of the respondents is letter dated 25/08/1997 (Exhibit-95), whereby the said Mr.Dayama was nominated on behalf of respondent No.9-Company. It was the case of the respondents that when the said letter along with Form- VIII prescribed under Rule 12-B of the said Rules was submitted before the Local (Health) Authority at Pune and an acknowledgment was received, it satisfied the requirement of the said Act and Rules and that therefore, the respondents being directors of the company could not be arrayed as accused before the Magistrate. The visit by the Food Inspector of the petitioner- Corporation in the present case took place within the jurisdiction of the Municipal Corporation, Amravati. It is an admitted position that intimation of such nomination was not submitted to the "Local (Health) Authority" at Amravati. The intimation of ::: Uploaded on - 03/08/2018 ::: Downloaded on - 05/08/2018 01:02:49 ::: 3107WP480.10-Judgment 18/21 nomination submitted to the Local (Health) Authority at Pune would obviously not suffice, looking at the definition of "Local (Health) Authority" under the said Act and the law laid down by this Court in the case of Azim Premji v. State of Maharashtra (supra). Even otherwise, the said nomination letter was dated 25/08/1997, while the incident in question in the present case had already taken place on 31/07/1997. On this ground also, the said nomination letter would be of no assistance to the respondents.
13. A perusal of the impugned orders show that the Courts below have erroneously relied upon the said document at Exhibit-95 to hold that the respondents were entitled for discharge in the present case. The findings rendered by the Courts below are obviously in the teeth of the position of law and hence they are not sustainable.
14. As regards to the contention raised on behalf of the respondents that under section 17(4) of the said Act the petitioner-Corporation (complainant) ought to have said something more in the complaint to show that the respondents ::: Uploaded on - 03/08/2018 ::: Downloaded on - 05/08/2018 01:02:49 ::: 3107WP480.10-Judgment 19/21 were indeed responsible for the conduct of the business and/or were in-charge of respondent No.9-Company at the time when the offence was said to have been committed, a perusal of the complaint filed on behalf of the petitioner-Corporation shows that basic and fundamental averments necessary to proceed against the respondents were made in the complaint and that therefore, on this ground also no grievance can be raised by the respondents.
15. Another glaring error committed by the Courts below was that while erroneously discharging the directors of respondent No.9-Company, even the Company stood discharged by the impugned orders. A perusal of section 17(1) shows that in either case i.e. even if there is a valid nomination on behalf of the Company, the Company itself would be guilty of the offence and it would be liable to be proceeded against. The Courts below completely failed to appreciate this aspect of the matter while passing the impugned orders and discharging respondent No.9- Company along with its directors.
16. In the light of the above, it is held that the Courts below could not have discharged the respondents on the basis that a ::: Uploaded on - 03/08/2018 ::: Downloaded on - 05/08/2018 01:02:49 ::: 3107WP480.10-Judgment 20/21 valid nomination had been made in the present case. Accordingly, this petition is allowed, the impugned orders are quashed and set aside. The Magistrate shall now proceed against the respondents along with the other accused. Since the complaint is of the year 2000, it would be in the interest of justice that the proceedings before the Magistrate are expedited. Accordingly, it is directed that the Court of Chief Judicial Magistrate, Amravati shall proceed to decide R.C.C. No.52 of 2000 within a period of one year from the date when a copy of this order is produced before it.
17. The record of the present case was received in this case as Rule was granted in this writ petition. Hence, the record shall be transferred back to the Court of Chief Judicial Magistrate, Amravati at the earliest and in any case, within a period of two weeks from today.
18. It is pointed out by the learned counsel for the respondents that some of the respondents are senior citizens and that it would be difficult for them to attend day-to-day proceedings at Amravati, since they are residents of Pune and Mumbai. Hence, the respondents shall be entitled to apply for ::: Uploaded on - 03/08/2018 ::: Downloaded on - 05/08/2018 01:02:49 ::: 3107WP480.10-Judgment 21/21 grant of exemption from personal appearance, which the Court of Chief Judicial Magistrate, Amravati, shall consider in accordance with law.
JUDGE KHUNTE ::: Uploaded on - 03/08/2018 ::: Downloaded on - 05/08/2018 01:02:49 :::