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Judgment
1) This is an application under Section 482 of the Code of Criminal Procedure seeking quashing and setting aside the prosecution initiated by the
respondent against the applicants. The criminal proceedings, which are sought to be challenged are pending in the Court of Judicial Magistrate First
Class at Navapur, Dist.Nandurbar. The process was issued by the Court for offences under Sections 7(i) r/w Section 2(ia) (a), 2(ia) (m) punishable
under Sections 16 and 17 of the Prevention of Food Adulteration Act, 1954 (For the sake of brevity, hereinafter referred as 'the Act').
2) The applicants are the Directors of the company M/s.Ruchi Soya Industries Ltd. The said company is engaged in the business of manufacturing of
edible oils. The company is duly registered under the Companies Act.
3) The brief facts as alleged in the complaint are as follows:-
(a) The complaint was filed by the Food Inspector, Food and Drug Administration, Dhule. The applicants are impleaded as accused Nos.5 to 10 in the
complaint being Directors of M/s.Ruchi Soyal Industries Ltd. The accused No.1 and 2 are Partners of M/s.Mahaveer Sons, Navapur. Accused No.3
is M/s.Mahaveer Sons situated at Navapur, Dist.Nandurbar. Accused No.4 is proprietor of M/s.Shri Balaji Agency having its office at Jyoti
Commercial Complex, Nandurbar. Accused No.11 is a Firm namely M/s.Ruchi Soya Industries Limited and accused Nos.12, 13 and 14 are nominees
of accused No.11. Accused No.15 is a Firm having office at Sri Ganganagar, Rajasthan.
(b) Accused No.1, who is the partner of M/s.Mahaveer Sons was present at the time of sampling as a vendor. Accused No.3 is a Firm dealing with
food articles. Accused Nos.1 and 2 are the partners of accused No.3. Accused No.4 is a Firm, who had supplied Mustard Oil (Mandap Brand) to the
Firm of Accused No.3. Accused No.4 has purchased the said Mustard Oil (Mandap Brand) from accused No.11 vide Invoice dated 19.6.2004 and
accused No.13 is a Firm, who has marketed said Mustard Oil (Mandap Brand) and accused No.12 is the nominee of accused No.13. Accused No.15
is the manufacturing Firm, who had manufactured and supplied Mustard Oil (Mandap Brand) to the Firm of accused No.11 vide Invoice dated
16.5.2004. Accused No.14 is the nominee of accused No.15.
(c) On 16.9.2004, the complainant along with independent witness and the Assistant Commissioner visited the shop premises of M/s.Mahaveer Sons,
Light Bazar, Navapur, Dist.Nandurbar. Accused No.1 was present in the premises as a vendor and partner, who is managing the business of Firm and
selling food article namely pure Mustard Oil (Mandap Brand) Ruchis in 500ml pack bottle. There was stock of 12 bottles of Mustard Oil, which was
having label as manufactured by Ruchi Soya Industries Ltd., and marketed by Ruchi Soya Industrial Ltd. Food Inspector, Mr.Joshi disclosed his
identity and intention of drawing the samples for testing and analysis to accused No.1. Mr.Joshi demanded and purchased three packs and sealed
bottles of 500ml Mustard Oil (Mandap Brand) for testing and analysis from accused No.1. The sample of food article was also drawn. A notice in the
Form VI was given to accused No.1 intimating that samples are drawn for testing and analysis. It is signed by accused No.1, Pancha and Food
Inspector. Notice under Section 14-A was also served on accused No.1 to disclose the source of product.
(d) The sealed bottles of Mustard Oil were taken for analysis. After completing the requisite procedure, the Panchnama was prepared at the spot,
which is signed by the complainant, Pancha and accused No.1.
(e) On 17.9.2004, one part of the sample was forwarded alongwith Memorandum in Form VII in a sealed packet to the Public Analyst, State Public
Health Laboratory, Pune, by registered Post. The complainant also forwarded separately the copy of Form VII and specimen impression of seal used
to seal the sample to the Public Analyst on 17.9.2004. The complainant sent remaining two sealed parts of the sample alongwith two copies of
Memorandum in Form VII in a sealed packet to the Local (Health) Authority and Assistant Commissioner, Food and Drug Administration (FDA),
Dhule, by hand delivery along with forwarding letter. The complainant also sent two copies of specimen impression of seal used to seal the sample in
the sealed packet alongwith forwarding letter to the Local (Health) Authority and Assistant Commissioner, FDA, Dhule.
(f) On 31.12.2004, the complainant received the Public Analyst's report of Mustard oil from State Public Health Laboratory, Pune through Local
(Health) Authority. The Public Analyst opined that the sample does not conform to the standards of Mustard oil as per the Prevention of Food
Adulteration Rules.
(g) The accused No.1 informed the office by letter dated 28.1.2005 that the Mustard oil is purchased by them the Firm of accused No.4 i.e. M/s.Shri
Balaji Agency having its office at Jyoti Commercial Complex, Nandurbar, vide Invoice dated 30.8.2004. Hence, the notice u/s 11(i)(a) was sent to the
Firm of accused No.4 on 1.2.2005. The complainant collected the information of Firm of vendor from Licensing Authority and also from Assistant
Commissioner, FDA, Dhule, and also collected information of other concerned Firms.
(h) The complainant submitted all relevant documents to Local (Health) Authority and Assistant Commissioner, FDA, Dhule, for forwarding the same
to Joint Commissioner (Nashik Division), FDA, Nashik, for obtaining consent u/s 20 of the Act to prosecute the accused. The documents were
forwarded on 15.12.2005. On 27.3.2006, the complainant received the consent order dated 23.3.2006 from the Joint Commissioner, FDA, Nashik, for
launching prosecution against the accused.
(i) The Mustard oil is a food article within the meaning of Section 2(v) of the Act. The accused Nos.1 to 3 sold the adulterated food article from shop
to the complainant on 16.9.2004 and thereby accused have committed the offences u/s 7(i) r/w 2(ia)(a), and 2(ia)(m) punishable u/s 16 and 17 of the
Act. The accused Nos.4 to 11 were charged for the same offences for supplying and distributing adulterated Mustard oil to the Firm of accused No.3.
Accused Nos.12 to 15 were charged for the offences for manufacturing, selling, distributing and marketing of the adulterated Mustard oil. The
complaint was filed on 21.4.2006.
4) The learned Magistrate issued the process for the aforesaid offences against the accused. The applicants were original accused Nos.5 to 10 have
invoked inherent powers of this Court to assail the said prosecution initiated by the respondent.
5) The learned counsel for the applicants submits that the learned Magistrate has committed an error in issuing the process and taking cognizance of
the complaint. It is submitted that the applicants were impleaded as accused being Directors of M/s.Ruchi Soya Industries. It is submitted that there is
no mention of applicants or their status in the entire complaint, except mentioning in the cause title of the complaint. There is no allegation of any overt
act against the applicants. There are no requisite averments or evidence that the applicants are Incharge and responsible for the business of the
Company. In the absence of any averments or evidence in that regard, no vicarious liability can be fastened against the applicants in accordance with
Section 17 of the Act. It is further submitted that the Company has nominated the nominees for their registered Office and their Factory, who are also
impleaded as accused nos.12 to 15 in the complaint. In the circumstances, the prosecution of the applicants was not warranted. It is further submitted
that there is gross violation of Section 13(2) of the said Act. On receipt of the report of Public Analyst to the effect that food article is adulterated, the
Local (Health) Authority after the institution of prosecution shall forward a copy of report of analysis to the accused persons informing such persons
that if they desire, they can make an application to the Court within a period of 10 days from the receipt of report for forwarding the samples to
Central Food Laboratory for reanalysis. The sample was drawn on 16.9.2004 and was analysed on 20.11.2004 and the complaint was filed on
21.4.2006. It is further submitted that the shelf life of the Mustard oil in question was 12 months from the date of packing, which is apparent from the
recital of label. The date of packing is April 2004. The best before date is 12 months from packing. Thus, the shelf life of the product was upto April
2005. However, the complaint was filed in April 2006 i.e. after almost 12 months after expiry of shelf life. Thus, in view of delay in filing the
complaint, the right granted to the accused vide Section 13(2) of the Act stands nullified. It is therefore, submitted that the prosecution of the
applicants for the said offences is not tenable in law and the same deserves to be quashed and set aside.
6) The learned counsel placed reliance on the decision of the Supreme Court in the case of Pepsico India Holdings Private Limited Vs. Food Inspector
and Another [(2011) 1 Supreme Court Cases 176] and another decision of this Court dated 3.8.2017 delivered in Criminal Application Nos.5503 of
2004 and 5505 of 2004 in the case of Bharat Puri and others Vs. The State of Maharashtra and Another.
7) Learned APP opposed the reliefs. It is submitted that the submissions advanced by the applicants cannot be considered at this stage.
8) On perusal of the documents, I find that there is merit in the submissions advanced by the learned Advocate for the applicants. It would be an
abuse of process of law to continue such prosecution against the applicants. The applicants are impleaded in the complaint as accused Nos.5 to 10
apparently being Directors of M/s.Ruchi Soya Industries Ltd., Mankeshwar Warehousing Co., 44/2,3,4 Uruli Devachi, Tal.Haveli, Dist.Pune. The title
of the complaint provides the designations of the applicants. Apart from that, there is averment in the complaint with regards to the vicarious liability of
the applicants. It is no where mentioned that the applicants are Incharge and responsible for the said Company, which is also impleaded as accused
No.11 in the complaint. The prosecution has invoked Section 17 of the Act. However, to substantiate the vicarious liability embodied vide Section 17
of the Act, neither there is averment in the complaint nor there is any material to fasten the liability of the applicants. The proceedings are therefore
not tenable in law against the applicants.
9) It is further noted that the valuable right granted to the accused to challenge the report of Public Analyst in accordance with Section 13(2) of the
Act, has been nullified and on that ground also, the proceedings are deserves to be quashed and set aside. It can be seen that the sample was drawn
on 16.9.2004. The report of Public Analyst was received as stated in the complaint on 31.12.2004. In the said report, it was opined that the sample
does not conform to the standards of Mustard oil as per the Prevention of Food Adulteration Rules. The complainant, however, submitted the
documents to the Local (Health) Authority and Assistant Commissioner, FDA, Dhule, for forwarding the same to the Joint Commissioner, FDA,
Nashik Division, Nashik, for obtaining necessary consent u/s 20 on 15.12.2005. The consent was thereafter received on 27.3.2006 and the complaint
was filed on 21.4.2006. There was no prompt action on the part of the authorities to initiate the prosecution against the accused. The Mustard oil has
shelf life of 12 months from the date of packing, which was clear from the recital of label. The date of packing was in April 2004, and therefore, the
product was best for use before 12 months from the date of packing. Considering the aforesaid aspect, the shelf life of the product was upto April
2005. However, the complaint was filed after 12 months i.e. after the expiry of shelf life. Hence, in view of delay in filing the complaint, the accused
has lost the right to re-analysis the sample in accordance with Section 13(2) of the Act. The complaint was filed after the expiry of the shelf life and
therefore, the question of forwarding the sample for re-analysis does not arise. The violation of the right u/s 13(2) of the Act vitiates the prosecution.
10) In the case of Pepsico India Holdings Private Limited (supra), the Supreme Court has considered the aforesaid aspect and it was held that the
Directors can be prosecuted on account of vicarious liability provided that there is material to show that they are responsible to the Company for its
day-to-day business. It was also observed that it is mandatory to the Central Government to prescribe Laboratories u/s 23(1-A) for testing food
samples/adulterants and to prescribe methods of analysis.
11) In the decision of this Court in the case of Bharat Puri and Others (supra) reference was made to the several decisions and it was observed that
in the complaint against the Company and it's Directors, the complainant has to indicate in the complaint whether the Directors are Incharge or
responsible to the Company for day-to-day management or whether they are responsible to the Company for conduct of its business.
12) In the present case, the complaint was absolutely silent about vicarious liability of the applicants. For both the reasons stated herein above, the
proceedings will have to be quashed and set aside and this is a fit case to exercise inherent powers u/s 482 of Code of Criminal Procedure to do so.
Hence, I pass the following Order:-
ORDER
(I) Criminal Application No.2019 of 2006 is allowed.
(II) The impugned proceedings in Regular Criminal Case No.37 of 2006 pending in the Court of Judicial Magistrate First Class, Navapur,
Dist.Nandurbar are quashed and set aside. (III) Rule is made absolute.
(IV) Application stands disposed of.