Gujarat High Court
State Of Gujarat vs Hirabhai Devsibhai Patel & 2 on 6 August, 2014
Author: R.D.Kothari
Bench: R.D.Kothari
R/CR.MA/12984/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 12984 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.D.KOTHARI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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STATE OF GUJARAT....Applicant(s)
Versus
HIRABHAI DEVSIBHAI PATEL & 2....Respondent(s)
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Appearance:
MR KP RAVAL, APP for the Applicant(s) No. 1
MR NIRAV C THAKKAR, ADVOCATE for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE R.D.KOTHARI
Date : 06/08/2014
ORAL JUDGMENT
1. The State of Gujarat being aggrieved by the order passed by Learned Additional Sessions Judge, Fast Tract Court No.10, Vadodara in Criminal Revision Application No.5 of 2006 has filed the present application. Learned Additional Sessions Judge has pleased to allow the revision of the applicant and was pleased to quash the order of issuance of process passed by the trial Court Page 1 of 7 R/CR.MA/12984/2008 JUDGMENT qua applicant.
2. Few relevant facts are thus ; The present respondents are partners in the firm namely M/s Sadguru Bottling. On 08.04.2004, Food Inspector said to have visited the shop of accused No.1 - it is New Shubhlakshmi Cold Drinks. Complainant had said to have purchased one cold drink namely Ravi Cola (Sweetened Carbonated Beverages). The complainant had purchased the same for analysis. Accordingly, the drink was sent to the Public Analyst, Baroda. The complainant received the Public Analyst report on 11.05.2004. Mainly three defects / deviations in the drink was found upon its analysis. One - total plate count to be 619. However, as per the standard, it should be 50. Secondly yeast and mould cont max should be two M.L. In the analysis under consideration, it was found 5 M.L. Thirdly, it is say of the complainant that on the bottle year and months of this drink are not mentioned and further percentage of sugar is also not mentioned, and therefore, the said drink was found to be misbranded. The complainant concludes that in view of above deficiency and defect, drink is misbranded and adulterated. Hence, after obtaining the permission, complainant has filed the present petition.
3. Learned Additional Sessions Judge, in its order under challenged, has allowed the Revision Application relying mainly on Section 17 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the Act") .
4. Heard learned APP Mr.K.P.Raval for the applicant and Mr.Nirav Thakkar, learned advocate for the respondents.
5. Learned APP after referring the facts of the present case Page 2 of 7 R/CR.MA/12984/2008 JUDGMENT and order under challenged, has submitted that learned Additional Sessions Judge has seriously erred in quashing the order of issuance of process. Learned APP submitted that in the complaint, complainant specifically asserts that in view of public analysis report, prima facie offence punishable under the Act is committed. In view of such specific averments in the complaint and also in view of the fact that complainant has joined all the partners including present petitioners as accused, this Court in this proceedings, should not interfere with the complaint filed. Learned APP has also drawn attention to Section 17(1) (ii) of the Act.
6. Learned advocate Neerav Thakkar for the respondents has pointed out that none of the present respondents are active partners in the firm. It was submitted that proceedings may go on against the firm and the working partners. It was pointed out that order of Additional Sessions Judge is just proper and correct and does not call for any interference. It was also submitted that present respondents has preferred Revision Application before Additional Sessions Judge and if the present applicant is aggrieved by the said order, the proper remedy for the applicant to file a revision and not an application under Section 482 of Cr.P.C. Learned advocate has also drawn attention to Section 17 (4) of the Act. It was submitted that in view of said explanation to Section 17(4) of the Act, complaint is unsustainable against the non working partners. Attention was also drawn to copy of the partnership deed on record. It shows that the present petitioners are sleeping partners in the firm. One Vallabhbhai Hirabhai Patel is active partner. He is accused No.5 in the present complaint. Neither A1 nor A2 and A5 have challenged the order of issuance of process. The present respondents are A3, A4, A6 i.e. non working or sleeping partners in the firm. Section 17(1) of the Act Page 3 of 7 R/CR.MA/12984/2008 JUDGMENT provides ;
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 subsection (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 ;
(iii) 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."
7. It provides that when offence is committed by the companies, the person nominated by the company should alone to be prosecuted unless consent or connivance of other Directors in a given case appears from the record. Section 17 of the Act says ;
"Offences by the companies". Learned advocate Mr.Thakkar has rightly drawn attention to explanation. It reads as under : "Explanation. For the purposes of this section
(a) "Company" means any body corporate and Page 4 of 7 R/CR.MA/12984/2008 JUDGMENT includes a firm or other association of individuals;
(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. In view of above explanation, Section 17 would be applicable to firm also. Section 17(1) says that when offence is committed by the companies, person nominated by the company, then such person should be prosecuted. Director of the Company who is not incharge of the company, and who is not responsible, for the conduct of business of the company, need not to be prosecuted. In view of above explanation, provision would applicable to firm also. Present petitioners are not working partners and are sleeping partners in the firm.
9. Learned APP has tried to reply this, urging that in the complaint itself complainant says that offence is committed by firm and has joined all the partners, therefore, all the partners of the firm should be responsible. Further, it was pointed out that petitioner's partnership firm has either not nominated any person or if nominated, intimation is not given to the authority. It is not possible to agree with the submission of learned APP that merely because the complainant files complaint against all of the partners including sleeping partners only on that basis, the complaint be considered as valid and good. As to the nomination of the person, as referred above, firm has nominated Vallabhbhai Hirabhai Patel (A5) as a working partner. A5 is not before the Court.
10. Assuming for the sake of arguments that firm has not Page 5 of 7 R/CR.MA/12984/2008 JUDGMENT intimated to the authority about nomination of working partners, merely on that ground, sleeping partners also cannot be held responsible. It may be bear in mind that complainant had said to have visited shop on 08.04.2004. Thereafter, complaint is filed as late on 14.10.2005 i.e. more than 1½ years of the alleged visit of shop. In case, wherein, company or firm are to be prosecuted, it is advisable that complainant may made inquiry from the said firm or company about the details of the partners or directors as the case may be and whether anyone is nominated or not. Reading of such requirement i.e. either prior inquiry by the complainant or prior communication with the said firm or company cannot be said to be unreasonable. It is consistent with the intention of Section 17 of the Act. It would also not to be out of place to mention here that working under the current roaster recently, I had occasioned to deal with the identical case of the company under the Food Adulteration Act. Therein, Food Inspector had called for information about the Director of the Company from the Company. In the present case, the complainant has filed an affidavit wherein he has avered that " ........... I have filed the present complaint accordingly, bonafidely, without any malafide on my part in discharge of my duty. However, I say and submit and assure to this Hon'ble Court that in future I will take due and proper care to file complaints ..............".
11. In view of above, present petition fails. No ground is made out by the applicant to interfere with the order of learned Additional Sessions Judge. Since, the application fails on this ground, the other plea raised by learned advocate for the respondents namely petition under Section 482 of Cr.P.C. is not maintainable and applicant is require to file revision, is not considered. Criminal Case No.2559 of 2005 may proceed in Page 6 of 7 R/CR.MA/12984/2008 JUDGMENT accordance with law against other accused i.e. A1, A2 and A5. Since, the case is of year 2005, trial be expedited. Petition is accordingly dismissed. Rule discharged.
(R.D.KOTHARI, J.) Amar Page 7 of 7