High Court
Legal Reasoning
( 1 ) cri apln 4193.19IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO. 4193 OF 2019Mr. Ramchandra Kaundinya VinnakotaDirector of M/s. Syngenta India Limited, having his office at Amar paradigam, S.NO110/11/3, Baner Road, Pune 411 045....APPLICANTV/s. The State of Maharashtra,through Mr. P.P. VibhandikInspector of Legal Metrology,Pachora Division, Dist. Jalgaon. ...RESPONDENT.....Mr. K.H. Parekh h/f. A.N. Ayachit, Advocate for the Applicant Mr. V. M. Jaware, APP for the Respondent-State..…CORAM : Y.G. KHOBRAGADE, J.RESERVED ON :09.10.2024 PRONOUNCED ON :18.10.2024JUDGMENT:-1.Rule. Rule made returnable forthwith. With the consent of boththe sides, the matter is heard finally. 2.Having regard to the rival submissions canvassed on behalf of boththe sides, I have gone through the record.3.By the present application under Section 482 of Code of CriminalProcedure, 1973, the Applicant is seeking quashment of the Criminal Complaint
Legal Reasoning
( 2 ) cri apln 4193.19bearing SCC No. 25 of 2019 pending on the file of the learned JudicialMagistrate First Class, Pachora, Dist. Jalgaon. The present Applicant is theoriginal Accused in Criminal Complaint bearing SCC No. 25 of 2019 institutedby the Respondent/Complainant - Inspector Legal Metrology Department.4.It is not in dispute that the present Applicant is one of the Directorsof M/s Syngenta India Limited. Mr. P. P. Vibhandik, Inspector Legal MetrologyDepartment is appointed under Section 13 of the Legal Metrology Act, 2009.He made a surprise visit to M/s. Paras Krishi Kendra at Pachora on 9th July,2018. During course of inspection of said establishment he found packages ofbrand “Gramoxone” kept for sale by the retailer, which have beenmanufactured by the Industrial establishment M/s. Syngenta India Limited andthe manufacturer has not maintained the height of numeral in the declarationas required, which violates the provisions of Legal Metrology Act, 2009 and thesame is an offence u/s 18 of the Legal Metrology Act, 2009 read with Rule7(2). Therefore, the Inspector Legal Metrology Department instituted acomplaint before the Judicial Magistrate F.C, Pachora. Accordingly, on 8th July,2019, the learned Magistrate has issued the summons against the presentApplicant/ original Accused.5.Mr. Parekh, the learned counsel appearing for the Applicantcanvassed that M/s Syngenta India Limited is a registered Company under the ( 3 ) cri apln 4193.19provisions of the Indian Companies Act, 1956. The Applicant/Accused is one ofthe Directors of the said company. Though there are other Directors but theyare not impleaded as accused. The Company manufactures commodities,which has been seized by the complaint, however, the Company, who is juristicperson is not impleaded as party accused. Therefore, the complaint is notmaintainable against the present Applicant alone for the offence committed bythe Company. Therefore, the complaint lodged by the Respondent is notmaintainable, hence, it needs to be quashed.6.The learned counsel for the Applicant further canvassed thatSection 49 of the Legal Metrology Act, 2009 provides for offences by theCompanies and power of Court to publish the name, place of business etc., forconviction of the Company, but the Company is not impleaded as an Accused.Further, in complaint no averment has been made as to how the presentApplicant is responsible for business, production of the Company as well aspackaging of it’s product/commodities. The Complainant has also not madeany averment regarding the specific role played by the Applicant whilepackaging the commodities. Therefore, the sole Applicant as a Director of theCompany is not liable for prosecution for the offence committed by theCompany, hence, prayed for quashing and setting aside the complaint. ( 4 ) cri apln 4193.197.To buttress these submissions, the learned counsel for theApplicant placed reliance on the following judicial pronouncements which areas under:a. Judgment dated 07.11.2017 passed in Cri. Appln. 2899 of 2017 in caseof Mr. Rohit Gothi Vs. State. b. 2018 ALL M. R. Cri. 465 (SC) Managing Director, M/s Castrol India Ltd.,Vs. State of Karnataka,c. Judgment dated 03-10-2022 delivered in Cri. Appln. No. 829 of 2015 incase of Dr. Vijaypat Singhania and others Vs. State,d. 2018 (1) FAC 401; Rajeev Tandan & others Vs. Statee. 2018 (1) FAC 1; Yum Restaurant India Pvt. Ltd. & Ors.Vs. State ofMaharashtra. f. 2007 ALL M.R. Cri. 3050; Shantanu Sinha Vs. State. 8.Per contra, Mr. V. M. Jaware the learned APP canvassed invehemence that, on 9th July, 2018, Mr. P. P. Vibhandik, the Inspector LegalMetrology Department had visited the premises of M/s. Paras Krishi Kendrasituated at Pachora and during the course of inspection at the saidestablishment, he noticed packages of brand “Gramoxone” kept for salemanufactured by M/s. Syngenta India Limited, an Industrial establishment ofwhich the present Applicant is a Director. The Complainant found that theAccused has not maintained the height of numeral in the declaration asrequired, which is an offence under Section 18 of the Legal Metrology Act,2009 read with Rule 7 (2). Since, the complainant complied with all the ( 5 ) cri apln 4193.19necessary requirements and drawn panchanama in presence of the witness.Therefore, a complaint has been lodged against the Applicant/Accused becausethe Applicant is a Director of said Industrial Establishment and manufacturedthe commodities. Therefore, the accused is prima facie guilty for the offencepunishable under Section 18 read with Rule 7(2) of the Legal Metrology Act,2009. Accordingly, on 8th July, 2019, the learned Magistrate passed an orderand issued the summons against the present Applicant. Therefore, theApplication under Section 482 of the Code of Criminal Procedure, 1973 is notmaintainable as it is an interlocutory order, hence, prayed for dismissal of theApplication.9.In support of these submissions, the learned APP relied on the caseof Om Kr. Dhankar Vs. State of Haryana & Anr.; 2012 AIR SCW 1821, whereinthe Hon’ble Supreme Court of India has held that an order directing theissuance of process is purely an interlocutory order and therefore, the barunder Sub-Section (2) of Section 397 would apply. On the other hand, it mustbe held to be intermediate or quasi-final and therefore, the revisionaljurisdiction under Section 397 would be exercised against the same.10.The learned APP further relied on the case of Amar Nath andothers Vs. State of Haryana and Ors.; AIR 1977 SC 2185, wherein it is held thatwhere a revision to the High Court against the order of the Subordinate Judge ( 6 ) cri apln 4193.19is expressly barred under Sub-Section (2) of Section 397 of the Code, 1973, theinherent powers contained in Section 482 would not be available to defeat thebar contained in Sub-Section 2 of Section 397. Section 482 of the Code, 1973contains the inherent powers of the Court and does not confer any new powers,but preserves the powers High Court already possessed. A harmoniousconstruction of Sections 397 and 482 would lead to the irresistible conclusionthat where a particular order is expressly barred under Section 397 (2) andcannot be the subject of revision by the High Court, then in such cases theprovisions of Section 482 would not apply. It is well settled that the inherentpowers of the Court can ordinarily be exercised when there is no expressprovisions on the subject matter but when there is an express provision, barringa particular remedy, the Court cannot resort to exercise the inherent powers.11.Coming to the instant case, the Applicant has approached thisCourt under Section 482 of Code of Criminal Procedure, 1973 seeking quashingof Criminal Complaint SCC No. 25 of 2019 pending on the file of JudicialMagistrate First Class, Pachora, Dist. Jalgaon. Therefore, the Applicant has noother remedy other than Section 482 of the Code of 1973. The Applicant hasnot challenged the order of issuance of summons passed below Exh.1 on08.07.2019 in SCC No. 25 of 2019, therefore, though the said order can berevisioned but the remedy under Section 482 of Code of 1973 is not a bar to ( 7 ) cri apln 4193.19approach this Court. Therefore, the submissions canvassed on behalf of thelearned APP is not acceptable to my judicial conscious.12.It is not in dispute that the Applicant is one of the Directors of M/s.Syngenta India Limited, registered under the provisions of the IndianCompanies Act. Therefore, the Company is the legal person. It is a matter ofrecord that the Complainant- Mr. P .P. Vibhandik, the Inspector Legal MetrologyDepartment visited the premises of M/s. Paras Krishi Kendra at Pachora on 9thJuly, 2018, and during the course of inspection of the said establishment henoticed the packaged brand of “Gramoxone” kept for sale. Said commoditiesare manufactured by M/s. Syngenta India Limited. The Complainant foundthat the manufacturer has not maintained the height of numeral in thedeclaration as required, which constitutes an offence under Section 18 of theLegal Metrology Act, 2009 read with Rule 7 (2), hence, he has instituted acomplaint before the Judicial Magistrate F.C, Pachora. Accordingly, on 8th July,2019, the learned Magistrate issued the summons against theApplicant/Accused.13.Section 49 of the Legal Metrology Act, 2009 deals with theoffences by companies and power of Court to publish name, place of business,etc., for companies convicted. Sub-Section 1 (a) and (b) of Section 49 reads asunder: ( 8 ) cri apln 4193.19“(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) tobe in charge of, and responsible to, the company for the conduct of thebusiness of the company (hereinafter in this section referred to as a personresponsible); or(ii) where no person has been nominated, every person who at the time theoffence was committed was in charge of, and was responsible to, thecompany for the conduct of the business of the company; and(b) the company, shall be deemed to be guilty of the offence and shall beliable to be proceeded against and punished accordingly:Provided that nothing contained in this sub-section shall render any suchperson liable to any punishment provided in this Act if he proves that theoffence was committed without his knowledge and that he exercised alldue diligence to prevent the commission of such offence.”14.Rule 18 of Legal Metrology (packaged Commodities) Rules, 2011reads as under:“18.Provisions relating to wholesale dealer and retail dealers.-(1) No wholesale dealer or retail dealer or importer shall sell, distribute,deliver, display or store for sale any commodity in the packaged formunless the package complies with in all respects, the provisions of the Actand these rules.(2) No retail dealer or other person including manufacturer, packer,importer and wholesale dealer shall make any sale of any commodity inpacked form at a price exceeding the retail sale price thereof.(3) Where, after any commodity has been pre-packed for sale, any taxpayable in relation to such commodity is revised, the retail dealer or anyother person shall not make any retail sale of such commodity at a priceexceeding the revised retail sale price, communicated to him by themanufacturer, or where the manufacturer is not the packer, the packer, andit shall be, the duty of the manufacturer or packer as the case may be, toindicate by not less than two advertisements in one or more newspapersand also by circulation of notices to the dealers and to the Director in theCentral Government and Controllers of Legal Metrology in the States andUnion Territories, the revised prices of such packages but the difference ( 9 ) cri apln 4193.19between the price marked on the package and the revised price shall not,in any case, be higher than the extent of increase in the tax or in the caseof imposition of fresh tax higher than the fresh tax so imposed:Provided that publication in any newspaper, of such revised priceshall not be necessary where such revision is due to any increase in, orimposition or, any tax payable under any law made by the StateLegislation:Provided further that the retail dealer or other person, shall notcharge such revised prices in relation to any packages except thosepackages which bear marking indicating that they were pre-packed in themonth in which such tax has been revised or fresh tax has been imposedor in the month immediately following the month aforesaid;Provided also that where the revised prices are lower than the pricemarked on the package, the retail dealer or other person shall not chargeany price in excess of the revised price, irrespective of the month inwhich the commodity was pre-packed.(4) Nothing in sub-rule (3) shall apply to a package which is notrequired,under these rules to indicate the month and the year in which itwas pre-packed.(5) No wholesale dealer or retail dealer or other person shall obliterate,smudge or alter the retail sale price, indicated by the manufacturer or thepacker or the importer, as the case may be, on the package or on thelabel affixed thereto.(6) The manufacturer or packer or the importer shall not alter the price onthe wrapper once printed and used for packing.(7) All retailers who are covered under the Value Added Tax VAT orTurn Over Tax (TOT) and dealing in packaged commodities whose netcontent declaration is by weight or volume or a combination thereofshall maintain a electronic weighing machine of at least accuracy classIII, with smallest division of at least 1 g, with facility to issue a printedreceipt indicating among other things, the gross quantity, price and thelike at a prominent place in their retail premises, free of cost, for thebenefit of consumers and the consumers may check the weight of theirpackaged commodities purchased from the shop on such machine.” ( 10 ) cri apln 4193.1915.In the case of Managing Director, M/s Castrol India Ltd., (supra),the Hon’ble Supreme Court of India has held that to determine vicariousliability of Officer of Company, clear and categorical statement that he wasIncharge of the conduct of business of company in respect of which an offenceis alleged to have been committed, is required to be made. If no such statementor averment is made in the complaint that the M.D. was responsible for conductof business of the company or for commission of any act on the basis of whichan offence is alleged to have been committed, the proceeding against the M.D.of Company is liable to be quashed.16.In case of Mr. Rohit Gothi Vs. State (Cri. Appln. 2899 of 2017), theCo-ordinate Bench of this Court by Judgment dated 07.11.2017 has held thatcombine reading of Clauses-A and B of Section 49 of the Act, it is very clearthat when the offence is committed by the Company, then the nominatedperson and the Company both are liable to be prosecuted. The vicariousliability of a nominated person would arise only when the Company is alsomade an accused. The nominated Director is impleaded as an accused in theevent Company commits offence, he being Incharge and responsible to theCompany for the conduct of the business of the Company.17.In the case of Dr. Vijaypat Singhania and others Vs. State (Cri.Appln. No. 829 of 2015), the Co-ordinate Bench of this Court by it’s Judgment ( 11 ) cri apln 4193.19dated 03.10.2022 has considered the cases of Yum Restaurants (India Pvt. V/s.The State of Maharashtra; 2018 (1) FAC91, Rajiv Kashinarayan Tandon & Ors.V/s. The State of Maharashtra; 2018 (1) FAC 401, TVS Motors Company andOrs. V/s. The State of Maharashtra; 2015 (1) FAC 432, Managing Director ofM/s Castrol India Ltd.; 2018 ALL M. R. Cri. 465 (SC) and case of Sunil BhartiMittal V/s. Central Bureau of Investigation; (2015) 4 SCC 609 and held that inabsence of averment in respect of role and responsibility of the Directors, insuch cases the prosecution against the Directors is not warranted.18.Similarly, in the case in hand, it prima facie appears that theRespondent/Complainant neither impleaded the Company who manufacturedthe commodities nor impleaded all the Directors of the Company as an accused.Nonetheless, there is no averment as to how the present Applicant isresponsible for the business and production of the Company as well aspackaging of it’s product/commodities. No any specific role is attributed to thepresent Applicant while packaging the commodities, which is subject matter ofthe complaint. Therefore, the sole Applicant as a Director of the Company isnot liable for the prosecution for offence committed by the Company and noprosecution as against the present Applicant can be continued. Therefore, theCriminal Complaint bearing SCC No. 25 of 2019 pending on the file of JudicialMagistrate First Class, Pachora Dist. Jalgaon is required to be set aside. In viewof above discussion, I proceed to pass the following order: ( 12 ) cri apln 4193.19: ORDER :I. Criminal Application No. 4193 of 2019 is allowed.II. Criminal Complaint bearing SCC No. 25 of 2019 pending on the file of Judicial Magistrate First Class, Pachora Dist. Jalgaon is hereby quashed and set aside in its entirety. Consequently, the order dated 08.07.2019 passed by the learned Judicial Magistrate First Class, Pachora Dist. Jalgaon is also quashed and set aside.III. Accordingly, Rule is made absolute in the above terms.[Y.G. KHOBRAGADE, J.]mub