A.J.SHASTRI,J. - (1.) The applicants, by way of present application, has challenged the legality, propriety and maintainability of complaint dated 26.7.2006 under the provisions of the Prevention of Food Adulteration Act,1954 registered as PFA No.3818 of 2006 before the JMFC, Municipal Court, Vadodara and also issuance of process upon the applicants by the learned JMFC, Vadodara.
(2.) The case of the applicants is that one company named as 'B-2-C India Limited' has started a retail chain of providing facility for purchasing variety of things i.e. various products and goods and the same was set up till 21.10.2005. Said company was managing the affairs of said retail chain. However, subsequently, in exercise of powers under Section 21 of the Companies Act, a resolution came to be passed by the company on 18.10.2005 and the name of the said company came to be altered from B-2-C India Limited to Adani Retail Limited and in respect of this change of the name, a fresh certificate in the name of the company came to be issued on 21.10.2005. It is the further case of the applicants that while the company was acting and operating, the activity in the name and style of 'B-2-C India Limited' into Limited, it had nominated Mr. Parag S. Padrakar, officer in-charge and made responsible for the affairs of the company's activity in the entire territory of the State of Gujarat under the provisions contained under Section 17 read with Rule 12B by submitting Form-VIII dated 15.2.2005. The applicants have asserted in the application that said Mr. Parag S. Pardrakar was duly authorised and nominated officer of the company for its activities falling within the purview of the Act and this nomination was appropriately filed before the authority as also before the Medical Officer, Local Health Authority, Ahmedabad and this nomination is acknowledged by the authority on 15.2.2005. The applicants have stated that it is the case of the prosecution that respondent No.2 - complainant had visited the outlet of the company on 8.6.2006 at around 1.30 p.m. and at that point of time, there was a product known as 'Nathji Kesari Mukhwas and the said product which was stored for the purpose of sale and was packed in polythene pouch of 250 gms. and there were about 4 such polythene pouches lying in the outlet. The complainant entered into the transaction and interaction with regard to said product with accused No.1 on the said day i.e. on 8.6.2008 and had purchased 3 packets / pouches of the said product and then forwarded to the public analyst for the report and according to the report, said product has been found to have been adulterated which has attracted the provisions contained under Section 2(ia)(j) and (h) and the complaint thereupon alleges against the applicants accused that there is a breach of Section 7(i)(v) which is punishable under Section 16 of the Act. The complaint in question came to be filed by respondent No.2 on 26.7.2006 before the learned Municipal Magistrate First Class Court which was registered as FAC No.3818 of 2006 and based upon that, on the very same day the learned Magistrate has issued summons upon the applicants, who are made accused before the Court for offences punishable under Section 2(ia)(j) and (h) as well as Section 7(i)(v) which is punishable under Section 16(1)(a)(ii) and it is this action of issuance of the summons based upon the complaint, the present application came to be brought before this Court by present applicants under Section 482 of the Cr.P.C.
(3.) The Court while initially entertaining the application had passed the following order whereby, notice came to be issued and ad-interim relief in terms of Para.12(D) came to be granted. Said order reads as under : "1. Heard Mr. M.J. Thakore, learned senior advocate with Mr. D.K. Puj, learned advocate for the petitioners. 2. It is submitted that sub-section (1) of Section 202 of the Code of Criminal Provisions, 1973, (the Code) makes it obligatory upon the learned Magistrate that before summoning the accused residing beyond his jurisdiction he shall inquire into the case himself or direct the investigation to be made by a police officer or such other person as he thinks fit, for finding out whether there was sufficient ground for proceeding against the accused. It is further submitted that necessary averments to the effect that the petitioners were in-charge of and responsible to the company for the conduct of the business of the company as envisaged under Section 17 of the Prevention of Food Adulteration Act, 1954, are not found in the entire complaint. Attention is drawn to the nomination Form-viii filed under the Rule 12(B) of the Prevention of Food Adulteration Rules, 1955, to point out that one Mr. Parag S. Padrakar had been nominated by the company to be in-charge of and responsible to the company for Gujarat in connection with any offence under the Act. It is submitted that in the circumstances, the petitioners could not have been arraigned as accused in the complaint in question. 3. Having considered the submissions advanced by the learned senior advocate, Notice returnable on 10th April, 2008. Ad-interim relief is granted in terms of Paragraph-12(D). 4. Mr. L.B. Dabhi, learned Additional Public Prosecutor waives service on behalf of respondent No.1-State of Gujarat. Direct Service is permitted qua respondent No.2." ;