M/s Sarv Vyapi Agro Mills (P) Ltd. vs Jogesh Chandra Swain and another

P.K. Mohanty, J.—Both the Criminal Revision arise out of the orders of the learned Sub-Divisional Judicial Magistrate (Sadar), Cuttack in rejecting the petitioner''s application u/s 11(5)(a)(iv) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as ''the Act''.) since common questions of fact and law are involved in both the Revision applications, with the consent and on agreement with the parties, they are heard analogously and disposed of by this common judgment.

The short facts of the petitioner''s case is that on 1-9-1998, while the oil tankers carrying mustard oil were enroute from Alwar (Rajasthan) to M/s. Gulap Trader, Malgodown, Cuttack and Mahabir Oil Refineries, Jagatpur, Cuttack, the Food Inspector of Cuttack Municipality intercepted the oil tankers and seized the entire stock of mustard oil along with the relevant documents accompanying the tankers from respective drivers suspecting the mustard oil to be adulterated. He collected the samples and sent the same for analysis by the Public Analyst. On analysis, it was found that the mustard oil contained Iodine more than the permissible limit. The Food Inspector filed an application u/s 11(4) of the Act for destroying the mustard oil, since according to the Public Analyst, the sample of mustard oil did not confirm the food standards. The petitioner filed application before the court for sending the second sample to the Director, Central Laboratory and the learned Magistrate allowed the same by order dated 10-11-1998. Undisputedly, the Central Laboratory also found that the sample did not confirm the food standard.

The petitioner filed applications u/s 11(5)(a)(iv) of the Act for return of the seized mustard oil to it for the purpose of re-processing the oil and bringing it in confirmity with the food standard and further orders of the court. Objections were filed by the Food Inspector mainly on the ground that such application can only be filed by the owner inasmuch as, in absence of the finding that the adulterated oil is capable of being brought to a condition in confirmity with the food standard, the same is not maintainable.

The learned Magistrate in the impugned orders, on consideration of the case of respective parties, held that in view of the clear provision u/s 11(5)(a)(iv) of the Act, the articles can be returned to the owner and since the owner has not filed the application, such application is not maintainable.

Sri Lal, learned counsel for the petitioners submits that the company being a juristic person, cannot be personally present, as has been erroneously held by the learned Magistrate and has to appear through some representative. In the present case, the power of attorney holder as the representative of the Company had appeared and filed application and, therefore, the learned Magistrate could not have taken any exception to such application and directed personal appearance of the Company. It is further submitted that undisputedly. M/s. Sarv Vyapi Agro Mills (P)Ltd, is the owner of the seized oil, inasmuch as, the notice sent by the Food Inspector was addressed to the said Company. The Company through its Director having executed a power of attorney appointing Girija Prasad as its power of Attorney Holder for filing application and to do all such things as would be required in connection with the case, there cannot be any objection as to whether the Company had made application under the aforesaid provisions. The learned counsel for the Municipality, however, in controverting the submissions made by the petitioner submits that although the petitioner-Company appeared through its representative, the real owner of the Company, who owns the food articles, have not yet appeared in court to make a prayer for return of the goods. It is his submission that the language of section 11(5)(a)(iv) of the Act is clear and unambiguous and it is the owner, who alone is entitled to make an application and that having not been done, a power of attorney holder could not have made the said application. It is further submitted that there was absolutely no material available on record that the learned Judicial Magistrate has come to finding that the articles can be brought to confirm the standard by re-processing the said oil and that there is chance of mis-utilising the seized articles.

In view of the submissions made, the limited question that needs determination, is as to whether the application filed by the power of attorney holder before the, learned Magistrate u/s 11(5)(a)(iv) of the Act was maintainable.

It appears from the lower court records in both the cases that an application u/s 11(5)(a)(iv) of the Act for return of the seized stock of mustard oil (Kachi Ghani) in the oil tanker for re-processing the same in order to bring it in confirmity with the prescribed standard, was filed on 19-1-1999. The petitions are not supported by any affidavit nor even verified by the petitioner or its power of attorney holder, from which it could be ascertained that the application has been made by the petitioner-company through its power of attorney holder. A copy of the power of attorney is also available on record which indicates that one Mahesh Gupta and Bisbnu Gupta, Directors of M/s. Sarv Vyapi Agro Mills (P) Ltd. appointed one Girija Prasad Gupta as their true and lawful attorney for the following purpose, which is quoted hereunder ;

"for the purpose to sign Vakalatanama, engage lawyers, agent appear before all Government Office in all States of India representing the Company to sign, undertakes the petitioners received goods, stocks and do all such legal steps as may be required from time to time."

At this stage, the relevant provisions of law may be considered. Section 17 of the Act contemplates that where an offence under this Act was committed by a Company, 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 and the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Under sub-section (2), any company may, by order in writing, authorise any of its directors or 1 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 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.

The application has been filed by the petitioner u/s 11(5)(a)(iv) of the Act, which may be quoted hereunder :

''''11 (5). If it appears to the Magistrate on taking such evidence as he may deem necessary-

(a) that the article of good produced before him under sub-section (4) is adulterated or misr branded, he may order it-

xx xx xx (iv) to be returned to the owner, on his executing a bond with or without sureties, for being sold under its appropriate name or, where the Magistrate is satisfied that the article of food is capable of being made to confirm to prescribed standards for human consumption after reprocessing, for being sold after reprocessing under the supervision of such officer as may be specified in order."

Thus, on a bare perusal of section 11(5)(a)(iv) of the P.F.A. Act, it is clear that in case, the Magistrate after taking such evidence as he may deem necessary, finds that the articles of food produced before him under sub-section (4) is either adulterated or misbranded, he may order the same to be returned to the owner where he is satisfied that the article of food is capable of being made to conform to the prescribed standard for human consumptions after re-processing or being sold after re-processing under the supervision of such officer, as he may specify in the order. It is to be noted therefore that the articles can only be returned to the owner on his executing a bond in the aforesaid circumstances.

Now, therefore, the question arises as to who can apply for return of the articles of food adulterated or misbranded in case where a company is the accused. Admittedly, the petitioner M/s. Serv Vyapi Agro Mills (P) Ltd., a company incorporated under the Companies Act, is the owner of the articles seized and it has been arrayed as accused No. 2 while accused No. 1 in both the cases are drivers carrying the oil tankers. It is the specific stand of the petitioner-company that it has not nominated any person in terms of sub-section (2) of section 17 of the Act and, therefore, the persons contemplated in subsection (1) of section 17 may be held responsible for the offence committed.

A perusal of the applications of the petitioner u/s 11(5)(a)(iv) of the Act discloses that a prayer was made before the learned Magistrate to direct release of them seized mustard oil in favour of the petitioner M/s. Sarv Vyapi Agro Mills (P) Ltd. permitting it to re-process the said seized mustard oil to bring it in confirmity to the standard either at Cuttack or Alwar on the terms to be fixed by the learned Magistrate, It is the contention of the learned counsel for the petitioner-company that the company had executed a power of attorney in favour of one Giriraj Prasad Gupta to do all such things as will be required in connection with the case and the application having been made by the power of attorney holder, the learned Magistrate ought to have held that the owner itself had made the application,

Section 305 of the Code of Criminal Procedure (hereinafter referred to as "the Code") prescribes the procedure when a Corporation or a registered society is an accused, which reads thus:

"305. Procedure when corporation or registered society is an accused.-(1) In this section "Corporation" means an incorporated company or other body corporate, and includes a society registered under the Societies Registration Act, 1860 (21 of 1860).

(2) Where a corporation is the, accused person or one of the accused persons in an inquiry or trial, it may appoint a representative for the purpose of the inquiry or trial and such appointment need not be under the seal of the Corporation.

(3) Where a representative of a corporation appears, any requirement of this Code that anything shall be '' done in the presence of the accused or shall be read or stated or explained to the accused, shall be construed as a requirement that thing shall be done in the presence of the representative or read or stated or explained to the representative, and any requirement that the accused shall be examined shall be construed as a requirement that the representative shall examined.

(4) Where a representative of a corporation does not appear, any such requirement as is referred to in sub-section (3) shall not apply,

(5) Where a statement in writing purporting to be signed by the Managing Director of the Corporation or by any person (by whatever name called) having, or being one of the persons having the management of the affairs of the corporation to the effect that the person named in the statement has been appointed as the representative of the corporation for the purposes of this section, if filed, the court shall, unless the contrary is proved, presume that such person has been so appointed.

(6) If a question arises as to whether any person, appearing as the representative or a corporation in an inquiry or trial before a Court is or is not such representative, the question shall be determined by the court."

Thus, where a Corporation or a Company is an accused, it may appoint a representative for the purpose of enquiry or trial in a criminal court and the presence of such person is to be construed as the presence of the accused under and for the purpose of any requirement of the Code. Further, if question arises as to whether any person appearing as the representative of a Corporation in an enquiry or trial before a court is or is not such representative, the question has to be determined by the Court as contemplated under sub-section (b) of section 305 of the Code.

In that view of the matter, the Company could legally appoint its representative for the purpose of appearance of the enquiry and the trial. In the present case, it is stated that Sri Giriraj Prasad Gupta was authorised under the power of attorney to represent the Company. But on a perusal of the purported power of attorney executed by two of the Directors as quoted in Paragraph-7 (supra) clearly indicates that the power of attorney was executed for the purpose of signing of Vakaltnama, engage lawyer, agent, appear before all Government offices in the States of India representing the Company to sign undertakings, receive goods, stocks and takes all such legal steps as may be required from time to time. There is no specific mention, as to whether the power of attorney holder was authorised to take steps in the aforesaid criminal prosecution against his Principal, the accused Company and do all that is necessary to be done by the owner. If the company really intended that the power of attorney holder is to represent it in the present criminal cases, nothing prevented it from stating so in specific terms. In other words, it was required to execute a specific power of attorney for the purpose of the criminal proceeding against the Company. The power of attorney purportedly executed by the two Directors of the Company does not disclose that the holder thereof was authorised to represent the company in the aforesaid criminal proceedings and for taking steps on its behalf. It was executed for a general purpose to deal in Government offices and not in court matters, specifically pertaining to the present criminal cases instituted against the Company and therefore it could not have been otherwise acted-upon. The application u/s 11(5)(a)(iv) also did not disclose that the same was filed by the power of attorney holder on behalf of the Company nor any affidavit was filed to that effect. Thus, such application could not have been and rightly not been entertained to be by a power of attorney holder on behalf of the company.

The learned Magistrate appears to have taken the view that the owner being required to take return the seized articles, it has to appear in person and make such application. It further appears that the learned Magistrate has not been able to appreciate that the accused being a company and thus a juristic person, it can only appear through its Managing Director as a representative as contemplated u/s 305 of the Code of Criminal Procedure or a nominee as contemplated u/s 17(2) of the Prevention of Food Adulteration Act. A reference to sub-section (3) of section 5 of the Code makes it abandently clear that the appearance of a representative of a company in any criminal proceeding would be construed as appearance of the company for the puipose of compliance with the requirement of the Code, However, the learned Magistrate is to satisfy himself, in terms of sub-section (6) of section 305 of the Code, whether or not the person appearing as the representative of the Company is or is not such representative. A reference may be made to the decision in Food Inspector, Cuttack Municipality Vs. B.P. Oil Mills Limited, of this Court, wherein the scope of section 305 of the Code as well as section 17(2) of the Prevention of Food Adulteration Act has been explained. It has also been observed that in case the prosecutor does not know, whether the Corporation has nominated anybody u/s 17(2) of the P. F. A. Act, the company has to aid the court as to or where the liability is to be fixed.

In view of the aforesaid analysis, the impugned order of the learned Magistrate to the extent it directs, the appearance of the Company and to make an application in that regard cannot be sustained in law and accordingly, the same is set aside. But however, if the petitioner makes a properly constituted application u/s 11(5)(a)(iv) of the P. F. A, Act through its representative empowered/authorised under a duly executed power of attorney speci6cally for the purpose of the case, the same should be considered on its proper perspective in accordance with law and in the light of the observations made in the judgment.

The Criminal Miscellaneous (revisions) are disposed of in the aforesaid terms.

Crl. revisions disposed of.