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A.P. GUPTA & ANOTHER versus STATE OF UP & ANOTHER

High Court of Judicature at Allahabad

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A.P. Gupta & Another v. State Of Up & Another - APPLICATION U/s 482 No. 1320 of 1987 [2006] RD-AH 21348 (19 December 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

 (Court no. 48)

Criminal Misc. Application  No.   1320   of 1987

1. Sri A.P. Gupta, Quality Central Incharge,

Feeder Balancing Diary, Ram Nagar, Varanasi

Now posted as Factory Manager, Lucknow Cooperative Milk Producers Union Ltd.  Jopling Road,

Lucknow.

2. Dr. R.K. Singh, General Manager,

Feeder Balancing Diary, Ram Nagar, Varanasi

Now posted as General  Manager,  Farmers  Organization and Animal Husbandry, Pradishik Cooperative Diary

Federation, 29, Park Road,  Lucknow ....  Accused- Applicants.

Vs.

1. State of U.P.

2. Sri A.L. Tiwari, Food Inspector,

C/o Chief Medical Officer,

Varanasi. ....  Complainant- Opp.Parties.

****

Hon'ble Barkat Ali Zaidi, J

1. This application under Section 482 Cr.P.C. relates to the violation of the  Prevention of Food  Adulteration Act,1954 ( hereinafter referred to as the Act). The applicant  A.K. Gupta is the Incharge Quality Control and applicant Dr. R.K. Singh is the General Manager  of the firm Feeder Balancing Diary, Ram Nagar, Varanasi.

2. The prosecution was launched  against them for manufacture and sale of Milk products like Ghee, Paneer and Skimmed Milk without license  as provided in Section  7 of the Act. Read with Rule-50 framed under the Act.

3. Heard Sri  G.D. Mishra, learned counsel for the applicants and Sri R.S. Maurya, Addl. Govt. Advocate for the Sate.

4. When the case came up for hearing  before a Judge of this Court in the year 1987, stay of proceedings was ordered.  Since them during this period of 19 years, proceedings continued to be stayed.  Some how, the case has now come up for hearing.

5. One of the grounds alleged is that the company has not been made as a party in the complaint. The Magistrate  in his order has mentioned that this is a clerical irregularity and the Company will be treated as an accused in the case. The Magistrate has  thus rectified the error in the complaint because Section 17 of the Act requires that the Company be also proceeded against. There seems no illegality of the Magistrate in rectifying the error, particularly since the sanction  by the Chief Medical Officer is to initiate proceedings against the  Feeder Balancing Dairy through the applicants. The applicants should not be allowed to take advantage of the Technical lacuna  that in the complaint, the company has not specifically been impleaded, because courts are supposed to  administer substantial justice and need not be  hide bound by technical pleas of this nature.   It has to be emphasized that there is mention of the Company and the accused-applicants  have referred to be the Quality Controller and General Manager of the Company.

6. The other ground taken by the applicants is that the Magistrate has amalgamated this case with the case of  adulteration under Section 7/16 of the Act against the Company and the applicants which is illegal. There seems no apparent illegality in the  amalgamation because they have been registered on the basis of the Inspection of the Food Inspector and no prejudice is likely to be caused to the applicants by amalgamation, nor any such prejudice been shown or indicated.

7. Another argument was that the applicants should not have been  proceeded against, and only the Company should have been arrayed . Section 17 provides a complete answer to this argument. Section 17 of the Act is as follows:-

" 17. Offences by Companies:- (1) Where an  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 ( hereinafter 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 b e 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, authorize any of its directors  or managers (such manager being employed mainly in a managerial or supervisory 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, along with 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 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 may body corporate and 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. There was no intimation from the applicants that they were ceased to be Director or Manager of the Company as provided in Sub-Clause (3) above. The contention in this regard  is without substance.

9. One of the pleas is as follows;  as contained in paragraph no.9 of the  petition. Paragraph no. 9 of the petition is as follows:-

" That M/s Feeder Balancing Diary is a Company for all legal purposes and whatever is being manufactured or sold in it, it is for and on its behalf. In fact, it is the firm which ought to have taken a licence  and there cannot be a licence in any individual capacity in such concerns.  In such circumstances, the  non-prosecution of the Company as an accused  hits the entire proceedings and also the cognizance taken by the learned lower Court which is without jurisdiction and liable to be quashed."

10. The argument is unacceptable  because the Company is a juristic person and has to act through  its employees. It is the employees who run the company and who are responsible for the conduct  of it's  business who have to see that necessarily legal requirement for the working of the company have been full filled  and it was     their duty to see  whether the company was functioning under proper licence or not?  The plea cannot , therefore,  hold ground .

11. In consequence, the petition fails and is dismissed.

Dt:  19.12.2006

  n.u.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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