TMI Blog1992 (3) TMI 360X X X X Extracts X X X X X X X X Extracts X X X X ..... e contention raised on behalf of the appellants it is necessary to notice a few provisions of the Act.Section 7 of the Act inter alia provides that no person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute any adulterated food or any misbranded food or any article of food in contravention of the provisions of the Act and the rules made thereunder. Section 16prescribes penalties for contravention of the provision of the Act. It lays down that if any person whether by himself or by any person on his behalf, manufactures for sale, or stores, sells or distributes any article of food which is adulterated or misbranded or the sale of which is prohibited under any provision of the Act or any rule made thereunder or by an order of the Food (Health) Authority, he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not be less than one thousand rupees. Then comes section 17, the relevant part whereof may be reproduced: 17. Offences by companies - (1) Where an offence under this Act has been committed by a company - (a) (i) the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the offence and shall be liable to be proceeded against and punished accordingly. Section 23 of the Act empowers the Central Government to make rules. In exercise of the said power the Central Government has framed rules known as the Prevention of Food Adulteration Rules, 1955 (hereinafter called 'the Rules'). Rule 12-B with which we are concerned reads as under; Form of nomination of Director of Manager and his consent, under Section 17-1 (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 one copy of the notice in Form VIII to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany to authorise any of its Directors or Managers 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 the Act. It further empowers the company to give notice to the Local (Health) Authority in the prescribed form that it has nominated a Director or Manager as the person responsible to the company for the conduct of its business. This has to be done with the written consent of the nominated Director or Manager. Where a company has different establishment or branches or units, different persons may be nominated in relation to the different establishments/ branches/units and the person so nominated shall be deemed to be the person responsible in respect of such establishment, branch or unit. Sub-section (4) of section 17 overrides the preceding sub-section and posits that where an offence has been committed by a company and it is proved that the offence was 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, other than the one nominated, such Director, Manager Secretary or other off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d had lifted samples of Tree Top Orange Drink in Tetrapacks and Dalda Vanaspati Ghee manufactured by the said two companies as he suspected the said products of the said two companies to be adulterated. During inspection the Food Inspector found that the Tree Top Tetrapack carried the date of manufacture as June 1988 as evidenced by the label affixed thereto and since the date of expiry was stated to be six months from the date of manufacture, the product was adulterated as six months had already elapsed on the date of inspection. It was, therefore, felt that the product was misbranded or adulterated. Suffice it to say that the samples collected by the Food Inspector from the said godown were forwarded to the Public Analyst for examination and report as required by law and the Public Analyst reported that samples of all the three products, namely, Tree Top Tetrapacks and Vanaspati Ghee manufactured by M/s. Lipton India Limited as well as by M/s. Hindustan Lever Limited were adulterated as they did not conform to the standard prescribed by law. It was on the receipt of this report that the Food Inspector filed three separate complaints against the company as well as its Directors, M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (4) of section 17 of the Act. If the prosecuting agency fails to show that the offence was committed with the consent or connivance of any particular Director, Manager, Secretary or other officer of the company or on account of the negligence of any one or more of them, the case set up against the appellants cannot be allowed to proceed. It may at this stage be mentioned that H. Dayani has filed an affidavit stating that at the material point of time he was the Branch Manager of the Nagpur Branch of Lipton India Limited and the said branch had a godown at Panagarh, District Jabalpur, where Dalda Vanaspati in different packings and Tree Top Tetrapack were stored, By the Board's Resolution dated 15th December, 1988 he was nominated under section 17 (2) of the Act to be the person in charge of, and responsible to, the company for the conduct of its business at Nagpur Branch. He further states that as per Rule 12B, a nomination in Form VIII was duly sent by the company to the Local (Health) Authority at Jabalpur and he had signed the said form in token of having accepted the nomination. This form, says the deponent, was duly received by the Local (Health) Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (4) of section 17 of the Act. That being so, the inclusion of the co-accused other than the company and the nominated person as the persons liable to be proceeded against and punished cannot be justified. As held by this Court in Municipal Corporation of Delhi v. Ram Kishan Rohtagi Ors., [1983] 1 SCR 884 where the allegations set out in the complaint do not constitute any offence, no process can be issued against the co-accused other than the company and the nominated person and the High Court would be justified in exercising its inherent jurisdiction under section 482 of the Code of Criminal Procedure, 1973 to quash the order passed by the Magistrate taking cognizance of the offence against such co-accused. That brings us to the question whether process could be issued against such co-accused under sub-clause (ii) of clause (a) of sub-section (1) of section 17 of the Act. This would depend on the court's finding whether there was a valid nomination in favour of H. Dayani and Dr. Nirmal Sen. If there was a valid nomination in existence at the date of the commission of the offence there can be no doubt that the case would be governed by section 17(1)(a)(i) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alth) Authority. The nomination form pertaining to Hindustan Lever Limited is dated 30the March, 1983 in favour of Dr. Nirmal Sen, Factory Manager of the Shamnagar unit of the company. Dr. Nirmal Sen has signed that form on 13th April, 1983. It appears to have been counter-signed by the Food Inspector, Bhatpara Muncipality. It is, therefore, not clear if it has been signed by the competent Local (Health) Authority of the area in which the godown from which the offending goods were recovered was situated. This too is a matter which needs investigation. In the result, the appeals are allowed. The order of the learned Magistrate as well as the impugned order of the High Court are set aside. The Matters are remanded to the learned trial magistrate with a direction to inquire 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 acknowledge the same. This question will be considered as a preliminary question and the learned magistrate will record a finding thereon . If he comes to the conclusion that the nomination forms had been acknowledged by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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