Omesh Kumar Goel vs State of Haryana

K.S. Kumaran, J.

The Government Food Inspector inspected the premises of Ram Parsad Provision Store, on 30.7.1992 and found Ram Parsad, the shopkeeper, in possession of 20 tins of `Madhu Ghee'' for public sale. After following the formalities, he took the samples and forwarded one of the samples to the public analyst, whose report showed that it was adulterated. Therefore, the Food Inspector lodged a complaint before Chief Judicial Magistrate, Kaithal, (Annexure P2) against said Ram Parsad owner of the Provision Stores under the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act). On the application of Ram Parsad the Court summoned Prem Kumar Goel. The Sub Divisional Judicial Magistrate, Guhla, by his order Annexure P4 dated 24.10.1997 while discharging Prem Kumar Goel (on his application for the said purpose) directed that Omesh Kumar Goyal (petitionerherein) be summoned. Prem Kumar Goel claimed that he had already resigned from the service of M/s Haryana Milk Foods, Pehowa, which was also accepted by the Board of Directors dated 27.3.1991 w.e.f. 1.4.1991. This fact was not disputed by any of the parties and, therefore, the learned Sub Divisional Judicial Magistrate, came to the conclusion that Prem Kumar cannot be prosecuted as he was no more owner or authorised person or Manager of the manufacturer of the Ghee. Accordingly the learned Sub Divisional Judicial Magistrate ordered that Prem Kumar Goel stood discharged, but, however in his place Omesh Kumar Goel petitionerherein being the Managing Director and in charge of the Haryana Milk Foods Ltd., Pehowa, be summoned. The petitioner then filed an application (Annexure P5) for furnishing the correct names and address of the responsible persons as contemplated under Section 17(2) of the Act. In his application, the petitioner stated that Parvin Talwar, Production Manager and Ashok Kumar Jadon, Quality Control Manager, were the incharge and responsible for the conduct of the business of the Company "Madhu Ghee", that the necessary information was furnished to the Local Health Authority, Pehowa, as per nomination and acceptance letter dated 4.11.1991 and, therefore, his name should be deleted. But, the Government Food Inspector pleaded that there is no such intimation with the Local Health Authority, Guhla. The learned Sub Divisional Judicial Magistrate, by his order Annexure P10 dated 4.8.1998 dismissed the application filed by the petitionerherein. The learned Sub Divisional Judicial Magistrate observed that unless and until the nomination duly made by the Company is accepted by the Local Health Authority, it cannot be said that there is a proper nomination as per Section 17(2) of the Act. He also held that the nominations were never acknowledged or accepted by the Local Health Authority, since the acknowledgement is blank and there is no signature of the Local Health Authority for accepting the same. He also took note of the plea by the Government Food Inspector that no such nomination has been informed or acknowledged by the Local Health Authority, Guhla, and as such it cannot be said that the above mentioned two persons are properly nominated as being the responsible to the company for conducting the business. Accordingly, he dismissed the petition filed by the petitioner.

That is why the petitioner has approached this Court for quashing the complaint (Annexure P2), the order dated 24.10.1997 (Annexure P4) and the order dated 4.8.1998 (Annexure P10) passed by the learned Sub Divisional Judicial Magistrate.

The State has filed a reply opposing this application urging among other things that the nomination of the two persons mentioned above was never accepted/acknowledged by the Local Health Authority, Guhla, as required under Section 17(2) of the Act.

I have heard the counsel for the parties and perused the record on file.

The learned counsel for the petitioner has raised two grounds for quashing the complaint and the impugned orders. The first is that the manufacturer of Madhu Ghee has nominated two persons as being responsible to the Company for the conduct of the business as contemplated under Section 17(2) of the Act and this fact has also been informed to the Local Health Authority, Pehowa, where the manufacturer company namely Haryana Milk Foods Ltd. is situate. The second ground taken by the petitioner is that without impleading the company namely the manufacturer, the petitioner, who is the Managing Director of the company cannot be prosecuted.

Section 17 of the Act provides that where an offence under the Act has been committed by a company, the person, if any, who has been nominated under subsection (2) to be incharge of and responsible to the company for the conduct of the business of the company or where no such person has been shown nominated, every person who at the time the offence was committed was incharge of and was responsible to the company for the conduct of the business of the company, and the company shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Therefore, I find that the second objection taken by the petitioner that without making the manufacturercompany as one of the accused, the petitioner being the Managing Director cannot be prosecuted, is well taken and on this ground alone, the complaint and the consequential proceedings are liable to be quashed.

The other contention of the petitioner is that two persons mentioned by him have been nominated under Subsection (2) of Section 17 of the Act, as the persons responsible to the company for the conduct of the business, and this fact has also been informed to the Local Health Authority, Pehowa, and therefore, the petitioner cannot be prosecuted.

Subsection (2) of Section 17 of the Act reads as follows :

"Any company may, by order in writing, authorise 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 such manner as may be prescribed, that it has nominated such director as the person responsible, along with the written consent of such director or manager for being so nominated."

the petitioner has produced annexure P6 copy of the Resolution dated 28.9.1991 passed by the Board of Directors of Haryana Milks Food Ltd. in pursuance of Section 17(2) of the Act and rule 12(a) of the Rules framed thereunder whereby Parvin Talwar, Production Manager and Ashok Kumar Jadon, Quality Control Manager have been nominated as the persons to be incharge and responsible to the company for the conduct of the business of the company. The petitioner has also produced (Annexure P7) copy of the letter addressed by the Haryana Milk Foods Ltd. to the Local Health Authority, Pehowa accordingly about the nomination of the above said two persons, along with the copies of the nomination and also the acceptance of the above said two persons. The petitioner has also produced the copy of the postal acknowledgment (Annexure P8) from the Local Health Authority Primary Health Centre, Pehowa, to show that this information has been delivered to the Local Health Authority, Pehowa.

The learned counsel for the petitioner, therefore, contends that inasmuch as the requisite information as contemplated under Section 17(2) of the Act has been given to the Local Health Authority, Pehowa, the prosecution of the petitioner as Managing Director of Haryana Milk Foods Ltd. cannot be permitted. But the learned counsel for the State contends that this information was not received by the Local Health Authority at Guhla. But, as pointed out already the Haryana Milk Foods Ltd. is situate at Pehowa and therefore, the information has been given to the Local Health Authority at Pehowa. It is not clear as to why any information has to be given to the Local Health Authority at Guhla since it is not disputed that Haryana Milk Foods Ltd. is situate at Pehowa. Therefore, the contention of the respondent that the information as contemplated under Section 17(2) of the Act has not been furnished to the Local Health Authority at Guhla and therefore, petitioner is responsible cannot be accepted. Before the trial Court an attempt was made to show that the said acknowledgement was not signed on behalf of the Local Health Authority, Pehowa. It may be a mistake on the part of the Local Health Authority, concerned in not signing at or even the post man who delivered the letter in not getting the signature, but, the postal acknowledgment has been returned to the Haryana Milk Foods Ltd. indicating that the information has been served. Further, it is not stated by the learned counsel for the respondentState that the intimation about the nomination of the responsible persons has not been received by the Local Authority, Pehowa. Therefore, it has to be taken that this intimation has been received by Local Health Authority, Pehowa, which has jurisdiction over the area in which the Haryana Milk Foods Ltd. is situate. Consequently, the prosecution of the petitioner cannot be sustained.

Resultantly, this petition is allowed quashing the impugned complaint (Annexure P2) as well as the impugned orders passed by the Sub Divisional Judicial Magistrate (Annexures P4 and P10).