Karnataka High Court
Mr. Anand Kripalu vs N Janardhan Rao Magar on 14 December, 2018
Equivalent citations: AIRONLINE 2018 KAR 2457
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER 2018
BEFORE
THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR
CRIMINAL PETITION NO. 6129 OF 2011
BETWEEN:
1. MR. ANAND KRIPALU
MANAGING DIRECTOR
M/S CADBURY INDIA LTD.,
NO.19, 'B' DESAI ROAD,
MUMBAI 400 026.
2. M/S CADBURY INDIA LTD.,
MR ANAND KRIPALU
JODI HANUMANTANAPALYA
MAHADEVAPURA POST,
MANGALORE ROAD, NELAMANGALA
BANGALORE 562 123
3. MR ARULACHAN
SALES MANAGER (SOUTH INDIA)
M/S CADBURY INDIA LTD.,
NO.146, 2ND FLOOR, ROYAPETH HIGH
ROAD, MYLAPORE, CHENNAI 600 004
4. MR. VIJAY
AREA SALES MANAGER BENGALURU METRO
M/S CADBURY INDIA LTD.,
NO.93, GANESH KRUPA INDUSTRIAL PARK
INDUSTRIAL SUBURB, 2ND STAGE,
GOREGUNTEPALYA (NEAR SHIVA TEMPLE)
YESHWANTHAPUR, BANGALORE 560079
2
5. MR. PRAMOD
PROPRIETOR, M/S ASPIRE AGENCIES
NO.1 & 2, SRI GANESH SHOPPING COMPLEX,
SARASWATHIPURAM MAIN ROAD,
MAHALAKSHMIPURAM,
BENGALURU 560086
... PETITIONERS
(BY SRI. ADITYA NARAYAN, ADVOCATE FOR
SRI. UDWADIA & UDESHI, ADVOCATES)
AND
N JANARDHAN RAO MAGAR
S/O LATE NARAYANA RAO
AGED 52 YEARS
NO.18, KGS QUARTERS,
1ST CROSS, GOVINDARAJANAGAR
4TH BLOCK, BANGALORE 560079
PRESIDENT OF FORCE AGAINST
CORRUPTION & ADULTERATION
... RESPONDENT
(BY SRI. L HARISH KUMAR, ADVOCATE)
****
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 CR.P.C. PRAYING TO QUASH THE ORDER DATED:19.7.10
AND 23.12.10 IN C.C.NO.806/11 ON THE FILE OF THE I
ACMM, BANGALORE, PRODUCED HEREIN AS ANNEXURE-A.
THIS PETITION COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners have sought for quashing the criminal proceedings in C.C. No.806/2011 pending before the IV 3 Additional Chief Metropolitan Magistrate, Bangalore and to quash the orders dated 19.07.2010 and 23.12.2010 at Annexure 'A'.
2. The facts leading to this petition are that on the basis of the complaint filed by respondent Mr. N Janardhan Rao Magar who is said to be the purchaser of Cadbury chocolates from M K Ahmed Super Shoppee at Bangalore. The chocolates purchased by the complainant- respondent were found to be adulterated and contaminated. Therefore, the said chocolates were sent to Public Health Institute, Government of Karnataka, Sheshadri Road, Bangalore on 07.01.2010. After conducting the test in respect of the said chocolates, the institute had submitted the report on 19.01.2010 opining that the dead insects, insects excreta and web formation were found in the said chocolates and it was also stated that the sample chocolates sent for examination were unfit for human consumption. Thereafter the complainant 4 approached the BBMP along with the reports issued by the Public Health Institute, but there was no response from the BBMP. The complainant had also sent a letter dated 29.04.2010 to the Cadbury Company informing about the manufacture of adulterated and contaminated food products, but the said Company did not take any action. Despite representation given to the BBMP and other competent authorities no legal action was taken against the manufacturers. Hence he was constrained to file a private complaint. The learned Magistrate has taken cognizance of the offences and has issued summons.
3. The learned counsel for the petitioners strenuously contended that when the complainant- respondent had approached the BBMP under the Prevention of Food Adulteration Act along with the report issued by the Public Health Institute, Government of Karnataka, Bengaluru. The initiation of proceedings under Section 273 IPC is not permissible under law. Even the 5 allegation for the offence punishable under Section 420 are baseless. In support of the said contention the learned counsel has relied on a decision in the case of C H Satyanarayan vs. State reported in 2012 (132) DRJ
652.
4. Per contra, the learned counsel for the complainant- respondent submitted that there is a prima facie case to show that the chocolates purchased by the complainant from the retailer M K Ahmed Super Shoppee were manufactured by Cadbury Company and the said chocolates were adulterated and contaminated. The report issued by the Public Health Institute confirmed the same. Thereafter the complainant approached the BBMP for taking legal action against the manufacturers of the chocolates under the provisions of Prevention of Food Adulteration Act, 1954, but no legal action was taken against the petitioner or the Company. According to Section 273 IPC the petitioners and the Cadbury company 6 becomes liable for the wrongful acts of manufacture and supply of adulterated and contaminated food products.
5. In view of the rival contentions the only point for determination that arises for consideration is, "Whether the petitioners are liable for the wrongful acts committed punishable under Sections 273 and 420 of IPC ?"
6. As could be seen from the records the complainant has purchased the chocolates from M K Ahmed Super Shoppee and the said chocolates were found to be adulterated and contaminated. The complainant had made the seller of the chocolates as accused No.6 as party in PCR, but his name is struck of from the complaint. As admitted by the complainant himself he had approached the BBMP along with the report issued by the Public Health Institute for taking legal action against the Cadbury Company, but the BBMP has not responded to the representation given by the complainant. According to the 7 counsel for the petitioner the complainant has got an efficacious remedy under the provisions of Prevention of Food Adulteration Act (at present Food Safety and Standards Act).
7. In the instant case the complainant had approached BBMP for taking legal action against the Cadbury Company under the provision of Prevention of Food Adulteration Act. It is only because the BBMP had not responded for the representation of the complainant, a criminal complaint was filed.
8. In a decision in the case of C H Satyanarayan vs. State reported in 2012 (132) DRJ 652 at paragraph 12 it is observed as under:
"12. I find merit in the submissions made by the learned senior counsel for the petitioner. So far as the first contention of the learned senior counsel is concerned, no doubt, Sections 272/273 IPC makes out an offence where a person is responsible for adulteration of any 8 article of food or drink. It lays that whoever has actually adulterated the article of food or the edible oil will have to be put to trial. But a person cannot be put to trial for an offence under Sections 272/273 IPC by invoking the provisions of the Prevention of Food Adulteration Act; Under the Prevention of Food Adulteration Act, the offence of adulteration is a strict liability offence and the offence does not require proof of mens rea while as under Sections 272/273 IPC, a person must have mens rea for being charged. Under the Prevention of Food Adulteration Act, the manufacturing company can declare a person as a nominee by completing certain pre- requisite formalities. Once these formalities are completed, this nominee would be responsible, in case, any adulteration in the article of food or the drink is found to be in existence but then the prosecution has to be under the Prevention of Food Adulteration Act. Similarly, in the event of a Director or the Managing Director being made liable, it has to be established that the Director is in-charge and responsible for the day to day conduct of the business of the company before he can be charged. There is no dispute about 9 the fact that the authority which is competent to lodge the prosecution for an offence of food adulteration punishable under the Prevention of Food Adulteration Act can also resort to Section 272/273 IPC and seek the prosecution of the accused by joining trial for both these offences, but in the absence of such a joint trial for both these offences, it is not open to the prosecution while initiating a prosecution against an accused for an offence under Sections 272/273 IPC to resort to the provisions of Prevention of Food Adulteration Act which has been precisely done in the instant case. Therefore, this is totally against the provisions of law prescribed under the Indian Penal Code."
9. There are no specific allegations in the private complaint as to the Company had malicious intention to commit the wrongful act of cheating. Under these circumstances, the initiation of criminal proceedings against the petitioners for the offences punishable under Sections 273 and 420 of IPC cannot be sustained. 10
10. For the foregoing reasons, I am of the view that there are valid grounds for quashing the proceedings. Accordingly, I proceed to pass the following-
ORDER The criminal petition is allowed.
Criminal proceedings in C.C. No.806/2011 pending before the IV Additional Chief Metropolitan Magistrate, Bangalore and the orders dated 19.07.2010 and 23.12.2010 at Annexure 'A' are quashed.
The complainant-respondent is granted liberty to approach BBMP and initiate legal action under the provisions of Prevention of Food Adulteration Act (at present Food Safety and Standards Act).
Sd/-
JUDGE ykl