B.N.Katju, J. - (1.) This is an application under section 482 Cr. P.C. praying that the proceedings against the applicants in criminal case No. 1597 of 1977 under section 7/16 of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) pending in the court of Judicial Magistrate 1st Class, Shahjahanpur be quashed.
(2.) According to the application, a complaint was filed by Sri G.P. Gupta, Food Inspector Block Bhawal Khera District Saharanpur in the Court of Judicial Magistrate 1st Class Shahjahanpur against the applicants under section 7/16 of the Act in which it was stated that on 1.2. 1977 at 2.30 P.M. they were found manufacturing for sale sugar and molasses. The statement of Sri G.P. Gupta was recorded by the learned Magistrate on 24-4-1978 in which it has been stated that on 1-2-1977 at 2.30 P.M. he inspected R.K. Industries, Manufacturers of Khandsari sugar and found Satish Chandra Gupta applicant No. 2 present in the factory and sugar was being manufactured in the factory. On a demand being made by him Satish Chandra Gupta applicant No. 2 failed to produce the licence under the Act under which the sugar was being manufactured. It was also stated by him that he was informed that Vinod Chandra Gupta applicant No. 1 was the proprietor of the factory. According to annexure I to the amendment application, R.K. Industries is a partnership firm having six partners but Satish Chandra Gupta applicant No. 2 is not a partner of the said firm.
(3.) Section 17 (1) and (2) of the Act runs as follows:- "17. Offences by companies - (1) Where an offence under this Act has been committed by a company - (a) (i) the person, if any, who has been nominated under sub-section (2) to be in charge of, and responsible to, the company for the conduct of the business of the company (hereinafter in this section referred to as the person responsible), or (ii) Where no person has been so nominated, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company; and (b) the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence. (2). 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 to commission by the company of any offence under this Act and may give notice to the Local (Health) Authority, in such form and in such manner as may be prescribed, that it has nominated such director or manager as the person responsible, along with the written consent of such director or manager for being so nominated. Explanation - Where a company has different establishments or branches or different units in any establishment or branch, different persons may be nominated under this sub-section in relation to different establishments or branches or units and the person nominated in relation to any establishment, branch or unit shall be deemed to be the person responsible in respect of such establishment, branch or unit." In order to establish the guilt of the applicants under section 7/16 of the Act it must be proved that either the applicants were nominated under sub-section (2) of Section 17 of the Act to be in-charge of, and responsible to the company for the conduct of the business of the company or that the applicants were in-charge of and responsible to the company for the conduct of the business of the company. In the present case neither the complaint nor the statement of Sri G.P. Gupta, Food Inspector mentions that either the applicants were nominated under sub-section (2) of Section 17 of the Act to be in charge of and, responsible to the company for the conduct of the business of the company or they were in charge of and responsible to the company for the conduct of the business of the company. So even if an offence is committed under section 7/16 of the Act by the company, the applicants cannot be held guilty. I am fortified in my view by the decisions of this Court in Sangram Singh Kothari and others v. State and another, (Crl. Misc. Case No. 5906 of 1977 decided on 22.2.1979) , M.R. Shervani and others v. State 1967 A.W.R.17) and Manmohan and another v. State of U P. and another, (1975 A.L.J 10) and also by the decision of the Supreme Court in Girdhari Lal Gupta v. D N. Mehta and another, (A.I.R. 1971 S.C. 2162). In these circumstances, even if all the allegations made in the complaint and in the statement of the Food Inspector are accepted, no offence is made out against the applicants under section 7/16 of the Act.;