- (1.) The petitioner seeks quashing of the complaint bearing C.C NO. 96/2007 titled, "Delhi Administration v. Hitesh Khatuja & Ors" under Section 7 & 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the "PFA Act") qua the petitioner claiming absence of vicarious liability for the offence.
(2.) The brief facts necessitating the disposal of the present petition are that on 27.11.2007, the Food Inspector purchased a sample of "kitchen King", a food article, for analysis from the premises of M/s K.M. Enterprises. The requisite sampling procedure was followed and the article was sent for analysis. The case of the prosecution is that the declaration regarding the "Kind and Category" was not specified on the label of the sample article of "Kitchen King". The sample was treated as misbranded because of such omission as to the "kind and Category" on the label of the sample, thus a violation under Rule 37A(2) of the PFA Rules. However, the accused at the time of the sale of the aforesaid article to the Food Inspector, while making the endorsement on the vendors receipt and the Form-VI referred to the sample as "Kitchen King Masala". The petitioner is a partner in the accused firm M/s Mahashaji Di Hatti, who were the super stockist of the product "Kitchen King". A complaint was filed against the accused persons including the present petitioner, holding them vicariously liable under Section 17 of the PFA Act, after obtaining the statutory consent of the Director, Prevention of Food Adulteration under Section 20 of the PFA Act on 10.06.2008. Hence the present petition seeking quashing of complaint qua the present petitioner, on the ground of absence of any vicarious liability for the said offence.
(3.) The learned counsel for the petitioner submitted that the present petitioner is 85 years old and was merely a sleeping partner in the accused firm Mahashaji Di Hatti. The partnership deed of the aforesaid accused firm at clause 15, evidences that at the time of formation of this partnership, it was decided that co-accused, partner Sh. Satish Kumar Pruthi shall be the active working partner, whereas the present petitioner shall be merely a sleeping partner. It is further submitted that the accused partnership firm namely Mahashaji Di Hatti, intimated the concerned authorities vide letter dated 01.02.2008 that the petitioner is merely a sleeping partner in the partnership firm and does not attend to the business of the firm. However, the Director, Prevention of Food Adulteration failed to take notice of these facts at the time of granting consent under Section 20 of the PFA Act. Therefore, the consent accorded by the Director, Prevention of Food Adulteration is without application of mind. Reliance is placed on Anita Malhotra v. Apparel Export Promotion Council, 2011 8 Supreme 1 in support of this contentions.;