Sree Ganesh Das Oil and Rice Mills vs State of Assam and Others

V.D. Gyani, Actg. C.J.

This revision petition is directed against the order dated 13.12.89 passed by learned Chief Judicial Magistrate, Tezpur in C.R. Case No. 813/83, a case u/s 16(7) of the Prevention of Food Adulteration Act, (hereinafter referred to as ''PFA Act'' seeking to prosecute M/s. Shree Ganeshdas Oil & Rice Mills, Tezpur for selling adulterated mustard oil. By the impugned order the learned Magistrate directed the prosecution to submit the names and addresses of persons coming within the purview of Section 17(1)(ii) of the PFA Act, so that they may be brought on record to face the charge.

Before taking up the petition on its merits, a word on its deplorable affairs prevailing in the Registry for non-listing of such matter where criminal prosecution are delayed for decades, the records are summoned, aptly attracting the observations made by the Supreme Court in Ganesh Narayan Hegde Vs. S. Bangarappa and Others,

It is common knowledge that currently the criminal Courts excel in slow motion. The slow motion becomes much slower motion when politically powerful or rich and influential persons figure as accused. FIRs are quashed. Charges are quashed. Interlocutory orders are interfered with. At every step, there will be revisions and applications for quashing writ petitions. In short, no progress is ever allowed to be made. And if ever the case reaches the stage of trial after all these interruptions, the time would have taken its own toll, the witnesses are won over; evidence disappears; the prosecution loses interest - the result is an all too familiar one. Repeated admonition of the Supreme Court have not deterred superior Courts from interfering at initial or interlocutory stages of criminal cases. Such interference should be only in exceptional cases where the interests of justice demand it; it cannot be a matter of course with respect to the contention that after a period of twelve years the matter should not be allowed to be proceeded with we must say that the complainant was not responsible for the delay.

The revision petition was filed on 19th January, 1990. On the same day, an interim order of stay of further proceedings till admission was passed and lower Court''s record requisitioned.

The scope of interference in criminal revision is restricted to legality, propriety or correctness of the order under revision. Seldom if ever the record is required and if at all some reference is required to be made, which the Petitioner relies upon and refers to, it is his duty to obtain certified copies of such documents on record and place the same along with the revision petition. Requisitioning of record as a routine practice invariably results in virtual stalling of all proceedings before the trial Court.

The interim order as it appears was still at admission stage. Surprisingly enough, having listed the matter twice on 19.2.90 and 21.2.90, it was not listed for Anr. six years. The Registry owes an explanation. At the admission stage the trial has been thwarted for all these years, although learned Counsel for the Petitioner submitted that he was ever ready to argue the matter. It is not to find fault with any one but it does call for a little introspection on the part of everyone as to why such matters are unduly delayed and prolonged, thereby defeating criminal prosecution. After 21.2.90, this petition came to be listed on 13th October, 1996 when the learned Single Judge at the request of learned Counsel appearing for the parties adjourned the matter and directed to be listed only after Puja Vacation and the Registry listed it not only after the Puja Vacation of the year but even on the next year on 4.12.97, when none appeared, yet this revision petition survived at the stage of admission and thereafter it has been listed today, so much for the ''prompt'' disposal of the revision petition. Adverting to the facts of the case, now that the trial Court''s record is available, it would not be out of place to note certain facts. A sample of mustard oil was taken by the Food Inspector, Darrang, Tezpur which on analysis was found not to conform to the standard. After completing the formalities, a complaint was lodged by the Food Inspector on 6.7.83 in the Court of Chief Judicial Magistrate, Tezpur. Fifteen years have rolled by and the matter still stands at the trial stage. The Food Inspector was examined as P.W. 1 on 21.12.88 and he was cross-examined on 31st July, 1989. Thereafter, P.W. 2, a Peon attached to the Chief Medical Officer was examined on 4.1.89. The accused Mahadev Gope was examined u/s 313 Code of Criminal Procedure on 26.9.89 and it was at this stage that one Harihar Prasad Nayek, who was all along appearing before the trial Court for accused M/s. Ganeshdas Oil & Rice Mill as nominee of the accused u/s 17(1)(a)(i) of the PFA Act as noted by the leaned trial Judge in his order sheet dated 20th November, 1989 ceased to be the employee of M/s. Ganeshdas Oil & Rice Mill and it was declared by the learned Counsel appearing for the M/s. Ganeshdas Oil & Rice Mill that he was not a nominee of the company but a mere representative. The learned trial Judge invoking Section 17(1)(ii) of the PFA Act passed the impugned order.

Contentions advanced by the learned Counsel for the Petitioner are two fold: (i) that the scope of Section 20A of the act is narrow and restricted and not wide enough to cover the case at hand (ii) Section 20 prohibits launching of prosecution without written consent of the Central or the State Government. As there was no written consent the impugned order is not sustainable in law.

Before proceeding any further, I would like to make it clear that I am not concerned with the merits of the case. My primary concern is the legality of the impugned order as passed by the learned Chief Judicial Magistrate, Tezpur. Section 20A of the Act deals with the power of the Court to implead a manufacturer, while Section 20 speaks of cognizance and trial of offences punishable under the Act. I am concerned with the prosecution of a Company, which necessarily takes me to Section 17 of the Act and all these provisions of law are to be read together and not in isolation. So far as Section 20A is concerned, on a plain reading thereof it is clear that the Court is invested with the power to proceed against any person, manufacturer, distributor or dealer who on evidence adduced before the Court is found to be involved and implicated in the case, can be impleaded as an accused, of course, it is subject to satisfaction of the Court. On being so impleaded Section 20A itself provides:

20-A. Power of Court to implead manufacturer, etc. - Where at any time during the trial of any offence under this Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any article of food, the Court is satisfied, on the evidence adduced before it, that such manufacturer, distributor or dealer is also concerned with that offence, then the Court may, notwithstanding anything contained in (sub-section (3) of Section 319 of the Code of Criminal Procedure, 1973 (2 of 1974) or in Section 20 proceed against him as though a prosecution had been instituted against him u/s 20.

Now, let us turn to facts as emerging from the record, M/s. Ganeshdas Oil & Rice Mills was all along there as accused No. 2 right from the institution of the complaint to the framing of charge. It was at the fag end of the trial that a surprise was sprung on 26.9.89 when the learned Counsel representing the accused Petitioner M/s Ganeshdas Oil & Rice Mills came out with a declaration that Harihar Prasad Nayek was no longer an employee of the Company and, therefore, he was not appearing before the Court. There is some dispute about his appearance earlier whether as a nominee or as a representative, but even this dispute as raised is not a real one.

This is not an isolated instance, it is an offshoot of the growing corporate criminality which has assumed alarming dimensions in the community and such pleas are nothing new in corporate criminality. Laws governing such corporate crimes are being taken advantage of. The contention that has been advanced by the learned Counsel is that it is not for the Court to implead the accused, it was the duty of the prosecution and prosecution has not chosen to implead the corporates. Therefore, they should be allowed to remain at bay. But the learned Chief Judicial Magistrate has not impleaded M/s. Ganeshdas Oil & Rice Mills u/s 20A, the Company was already there as an accused right from the beginning, there was no question of impleading the company. The company was represented through its counsel and Harihar Prasad Nayek, who has preferred to be called as representative, rather than nominee. Section 20A, as such, is not attracted in view of the glaring facts of the case. The provision which has sought to be applied is based on disregard of facts on record. Similarly, the question of taking cognizance against the company u/s 20 does not arise. The cognizance had already been taken and charge had been framed and framing of charge is nothing but taking of cognizance, even issuance of process or notice, has been interpreted as taking cognizance of. Had it not been for the fact that Harihar Prasad Nayek, who turned volte face by sheding his legal character as a nominee and claiming merely to be a representative of the Company, there was no occasion for the Court to have taken recourse to Section 17(1)(ii) of the Act. It is only because that the accused company took an about turn making the statement that Harihar Prasad Nayek was no longer in their employment and he was merely representing the Company, but not as a nominee as duly so appointed u/s 17(1)(a) of the Act. If that was the stand of the Company, it is claimed that the procedure, as provided by Sub-clause (ii) of Section 17(1)(a)(i) of the Act, will take its own course. A pointed query was made to the learned Counsel appearing for the Petitioner, whether the Company is still in a mind to nominate someone? Learned Counsel was at pains to make any categorical reply in view of the long time that had lapsed since the offences, were committed. In that case, those who at the time of commission of offence were in-charge of business day to day and were responsible to the Company, are liable to be prosecuted and that is what the learned trial Court has done by the impugned order. It is a matter of both evidence and proof, which, of course, the prosecution has to discharge, but the accused Petitioner-Company cannot be allowed to play a game of hide and seek in a criminal trial, the names of persons who were responsible for the business and day to day affairs and activities of the Company at the time of commission of the offence are to be disclosed, as directed by the learned Magistrate. This revision petition as it stands today is still at the stage of admission and that is one such reason which deters me from imposing any costs. It has been disposed on merit with no order as to costs. The Registry is directed to see that the record is sent back immediately. Compliance to be reported to the Bench Clerk of this Court by tomorrow. The accused Petitioner shall appear before the trial Court on 22nd June, 1998. In view of the long time, it is expected of the trial Court to proceed with the trial of the case, if necessary day to day, without any further loss of time.