Rajasthan High Court - Jodhpur
Smt Shukla Wassan vs State & Anr on 29 August, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 3446 / 2016
Smt Shukla Wassan W/o Sh. Deepak Wassan, Aged About 56
Years, Y-141 Regency Park-2 Dlf City Phase-4 Gurgaon-122001
(hr), Director , Hindustan Coca-cola Beverages Pvt. Ltd. Having Its
Registered Office At B-91 Mayapuri Industrial Area, Phase-1 New
Delhi-110 064 and Its Manufacturing Plant Amongst Others
Situated At Village- Goblej, Taluka &district-kheda, Gujarat-
387440.
----Petitioner
Versus
1. State of Rajasthan Through Public Prosecutor, Rajasthan High
Court Premises Jodhpur
2. Ajay Kumar Tripathi, the Food Safety Officer, North-western
Railway, Jaipur.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Vikas Balia, Mr. Rishi Soni, Mr. Pramod
Vyas, Mr. VD Vaishnav.
For Respondent(s) : Mr. VS Rajpurohit PP for the State.
Mr. Kamal Dave.
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 29/08/2017
1. The petitioner has preferred this misc. petition under Section 482 of Cr.P.C. 1973, for quashing of the complaint under Section 26(2)(ii) and punishable under Section 52 of Food Safety and Standards Act, 2006 and proceedings pending before the learned Adjudicating Officer cum Additional District Magistrate, Pali in Case No.3/2016.
2. Learned counsel for the petitioner at the outset submits that the petitioner Smt. Shukla Wassan is the director of the firm M/s. Hindustan Coca-Cola Beverages Private Limited, having its plant amongst others situated at Village- Goblej, Taluka & District Kheda, Gujarat,-387440 (hereinafter for brevity referred to as "HCCB"). HCCB is a company registered under the Companies Act (2 of 4) [CRLMP-3446/2016] and is engaged in production, manufacture, bottling, sale, distribution, marketing and supply of beverages including sparkling beverages, packaged drinking water, fruit based drinks prepared from beverage base and concentrate syrups under various trademarks ("Trandemarks") such as Diet Coke, Mazza, Fanta, Coca-Cola, Thumps Up, Limca, Sprite, Kinley, and Minute Maid etc. The Trademarks are owned by the parent company of HCCB, being the Coca-Cola Company, Atlanta, USA (hereinafter for brevity referred to as "TCCC"). HCCB is an authorized bottler of TCCC and has adequate infrastructure to market and distribute the Beverages in various markets in India.
3. Learned counsel for the petitioner has further submitted that in compliance of the Section 66 of the Act, 2006 and Rules, 2011, the Hindustan Coca-Cola Beverages Ltd. vide its board resolution dated 13.08.2013 nominated Mr. Ankit Kumar Pal as its nominee in the prescribed form-IX, according to which he shall be responsible and liable for food safety and for any contravention of the fact, rules, regulations or directions issued thereunder in respect of the said plant and shall take all necessary steps to prevent the commission of any offence by the said plant. The aforesaid information was also sent to the Food Safety and Standard Authority of India by the Company on 16.09.2013 and also to the local FSSA Authority on 18.10.2013.
4. Learned counsel for the petitioner also submits that in accordance with spirit of Section 66 of the Food Safety and Standards Act, 2006, reads as follows:
"(1) Where an offence under this Act which has (3 of 4) [CRLMP-3446/2016] 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:
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."
5. A bare perusal of the aforesaid provision, makes it clear that the petitioner is not at all responsible and she has been wrongly implicated in the matter. So far as Sub-Section (2) of Section 66 is concerned, it is submitted that no such allegations against the petitioner has been made in the complaint itself. Therefore, the sub-section (2) of Section 66 is not applicable in (4 of 4) [CRLMP-3446/2016] the present case.
6. Learned counsel for the petitioner submits that a nominated person of the Company shall be responsible for the food, safety and shall be liable for contravention in respect of such established, branch or unit. Learned counsel for the petitioner has shown from the documents which is annexure to the writ petition dated 16.09.2013, whereby nomination letter under the food, safety and standards authority is issued and rest of the formalities under form No.9 for nomination for person by Company was also followed.
7. Learned counsel for the respondent No.2 also at the outset submits that without going into merits of the case, if the nominee is to be made responsible in accordance with spirit of Section 66 of the Act of 2006, then it may be permitted.
8. In light of such submissions, the present petition is allowed only to the extent that for the allegations levelled in the complaint for the proceedings being conducted against the present petitioner, who is only a director in the company and nothing has been attributed to him in the complaint and, therefore, the proceeding before Additional District Magistrate, Pali in case No.3/2016 (Ajay Kumar Tripathi, FSO, NWR, Jaipur vs. Sabir Khan & Ors.) is accordingly quashed and set aside qua the petitioner only.
9. Learned counsel for the petitioner undertakes that the nominee on behalf of the company shall present himself for the proceedings in question before respondents immediately in accordance with law.
(DR. PUSHPENDRA SINGH BHATI)J. ck