Satya Narain vs Local Health Authority and Another

Pradeep Nandrajog, J.—Petitioner Satya Narain Gupta prays that order dated 27.9.1999 as also order dated 1.3.2002 passed by the

learned Metropolitan Magistrate be quashed.

Vide order dated 27.9.1999, petitioner has been summoned to face trial in a complaint filed u/s 16 of the Prevention of Food Adulteration Act

1954. Vide order dated 1.3.2002 learned MM has dismissed an application filed by the petitioner seeking recall of the summoning order. In view

of the decision of the Supreme Court in Adalat Prasad Vs. Rooplal Jindal and Others, , it was conceded by Learned Counsel that the learned

Metropolitan Magistrate could not recall the summoning order and hence Learned Counsel for the parties conceded that issue should be decided

with reference to the summoning order.

Order dated 27.9.1999 is a cryptic order. It reads as under:

Certificate received from Director CFL Colcotta. Perused. Contents revealed to both sides. Sample has been found adulterated at the accused by

summoned.

Though, order dated 1.3.2002 need not be discussed, but as it would be relevant, it may be noted that reason why petitioner''s application

seeking recall of the summoning order was dismissed is a finding by the learned Metropolitan Magistrate that in case no nomination was made u/s

17 of the Prevention of Food Adulteration Act 1954 with the local health authority at Ghaziabad, being the managing partner of accused No. 2

petitioner would be liable if complaint ultimately succeeded.

There are three accused in the complaint. Accused No. 1 is Mr. Khalik Hasan. Accused No. 2 is M/s Swastik Fragrances, a partnership firm.

Accused No. 3 is the petitioner.

A sample of Pan Masala manufactured by accused No. 2 was lifted from a depot in Delhi. Khalik Hasan was the depot incharge. After

following the process of lifting the sample and sealing the same, on being tested, sample failing, it was stated in the complaint that as product was

manufactured by M/s Swastik Fragrances and as petitioner was the managing partner of the partnership firm i.e. accused No. 2, the partnership

firm, the depot incharge at Delhi and the petitioner were liable to be punished for selling adulterated pan masala.

There is no assertion in the complaint that the complainant made enquiry from the local health authority at Ghaziabad, the place of manufacture

of pan masala, to find out whether any nomination was made u/s 17 of the Prevention of Food Adulteration Act 1954.

It is not disputed by Learned Counsel for the State that one Vishwanath Ajmera was nominated on 23.2.1998 by the firm as the person

responsible to prevent commission of offence by accused No. 2 under the Prevention of Food Adulteration Act 1954. It is also not in dispute that

the sample was lifted on 1.5.1998.

Thus, in view of the authoritative pronouncement by the Supreme Court in the decision reported as R. Banerjee and others Vs. H.D. Dubey and

others, the petition must succeed for the reason, admittedly there are no averments in the complaint the offence was committed with the consent or

connivance of or is attributable to any neglect on the part of the petitioner.

Suffice would it be to record that in R. Banerjee''s case (Supra), it has been held that the person nominated u/s 17 of the Prevention of Food

Adulteration Act 1954 would be responsible if offence is committed by a company (as per explanation to Section 17 company includes a firm or

an association of individuals). It was further held that apart from persons so nominated, if a Manager, Secretary or Director of a company is sought

to be made liable, there have to be specific averments in the complaint that the offence was committed with the consent or connivance of or is

attributable to any neglect on the part of the said person.

Thus, if a partner of a firm is held accountable and there is a nomination u/s 17 by the firm, averments have to be made to justify accountability

of the partner(s).

The petition is allowed.

Order dated 27.9.1999 summoning the petitioner to face trial in the complaint in question is quashed.