Criminal Misc. No. M-7925 of 2008 v. State of Punjab through Dr. Harjit Lal (

consequential proceedings, arising out of the same, has been filed by the petitioner. Criminal Misc. No. M-7925 of 2008 2

2. The facts, in brief, are that, on 10.03.06, at about 2.30 PM, the respondent/complainant alongwith Dr. Amarjit, Blood Transfusion Officer, Civil Hospital, Hoshiarpur, inspected Sharma Karyana Store, at Nangal Road, Garhshankar. It was stated that Ajay Kumar Sharma, the proprietor of the aforesaid store, was found present, from whom, 10 bottles of Kamal Agmark Double Filtered Mustard Oil, were recovered. It was further stated that, the complainant, disclosed his identity, to Ajay Kumar Sharma, and on enquiry, it came to the fore, that he purchased Kamal Agmark Double Filtered Mustard Oil, from the petitioner, vide invoice dated

11.02.06. It was further stated that, thereafter, Form No. VI, duly signed by Ajay Kumar Sharma, co-petitioner (non-applicant), Dr. Amarjit, BTO, Civil Hospital and Kuldeep Singh, independent witness, was served upon Ajay Kumar Sharma. It was further stated that the complainant, purchased three bottles of Kamal Agmark Double Filtered Mustard Oil, from Ajay Kumar Sharma, for Rs. 150/-, against a proper receipt. The sample bottles were converted into parcels, duly sealed. Memo was prepared, at the spot, duly signed by the complainant and Ajay Kumar Sharma, and attested by the recovery witnesses. It was further stated that, thereafter, one sample parcel, containing copy of Form No. VII, and, bearing impression of the seal, used at the time of recovery, was sent, to the Public Analyst, Punjab, Chandigarh, through Special Messenger, for analysis, whereas, the remaining parcels, were deposited with the Local Health Authority. It was further stated that, as per the report of Criminal Misc. No. M-7925 of 2008 3 the Public Analyst, Agmark Label Number, had not been given, on the sample bottle, as required, under the provisions of Rule 15 of the Prevention of Food Adulteration Rules, 1955. It was further opined, in the report of the Public Analyst, that the green symbol, indicating the product, to be a vegetarian food, had also not been given. Moreover, as per the aforesaid report, the label declaration, that the representative sample, tested in the competent laboratory and certified to be unadulterated, did not comply with Rule 37 of the Prevention of Food Adulteration Rules, 1955, and, as such, the sample was misbranded. Consequently, the aforesaid complaint, was filed, against the petitioner, director of the manufacturing Co. and Ajay Kumar Sharma.

3. Feeling aggrieved, the instant petition, has been filed, by the petitioner.

4. I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully.

5. The Counsel for the petitioner, submitted that, no offence, under the Prevention of Food Adulteration Act, 1954, was made out, from the allegations, contained in the complaint. He further submitted that, as per the allegations, on 10.03.06, the Food Inspector, inspected the premises of one Ajay Kumar, and found him having 10 bottles of Kamal Agmark Double Filtered Mustard Oil, in his possession, for sale. He further submitted that, a sample, was taken, and, when the same, was sent, to the laboratory, it came to the conclusion, that Agmark label number, as required, under the Criminal Misc. No. M-7925 of 2008 4 provisions of Rule 15 of the Prevention of Food Adulteration Rules, 1955, green symbol, indicating the product in vegetarian food was not given. He further submitted that the laboratory, also came to the conclusion, that the sample, did not comply with the requirements of Rule 37 of the Prevention of Food Adulteration Rules, and hence the same was misbranded. He further submitted that, as per the allegations, Ajay Kumar, was found, in possession of Kamal Agmark Double Filtered Mustard Oil. He further submitted that Agmark label number was given, and, as such, there was no violation of the provisions of Rule 15 of the Rules ibid. He further submitted that, even in the report of the Public Analyst, Agmark number i.e. 'A', number 'AY' 25356, was found written, on the sample bottle. He further submitted that, even there was no violation of the provisions of Rule 37 of the Rules ibid. He further submitted that the sample, was taken, on 10.03.06, whereas, it was sent, to the laboratory, on

13.03.06, and the report, was prepared, on 10.04.06. He further submitted that the complaint, was filed, on 02.06.07, but, no copy of the report, was sent, to the petitioner, and, as such, he was deprived of his valuable right of getting the sample re-tested, through a higher laboratory. He further submitted that, no specific averment, was made, that the petitioner, being a Director of the manufacturing Company, was incharge of and responsible to it, for the conduct of its business, and, as such, he could not be prosecuted. He further submitted that continuation of the complaint, and the subsequent proceedings, are nothing, but an abuse of the process of the Court. Criminal Misc. No. M-7925 of 2008 5

6. On the other hand, the Counsel for the respondent, submitted that the Public Analyst, found the sample to be misbranded, and, as such, there was violation of Rules 15 and Order 37 of the Rules ibid.

7. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition, is liable to be dismissed, for the reasons, to be recorded, hereinafter. The petitioner, is the Director of the manufacturing Company. Ajay Kumar, whose premises, were inspected, purchased Kamal Agmark Double Filtered Mustard Oil, from M/s Ajit Singh Om Parkash Limited, Naya Bazar, Delhi. As per the report of the Public Analyst, green symbol, indicating that the product, contained in the bottle, was vegetarian food had not been given. The label declaration, that the sample, tested in the competent laboratory and certified to be unadulterated, did not comply with Rule 37 of the Prevention of Food Adulteration Rules, 1955. It was, on account of these two violations, that the sample, was found to be misbranded. At this stage, the report of the laboratory, cannot be said to be wrong. If the petitioner, has got any grievance, against the report of the laboratory, he can challenge the same, during the trial of the case, by whatever may be the mode, available to him, under the provisions of law. If there is any defence available, to the petitioner, the same, can only be taken, during the trial of the case. The allegations, contained in the complaint, coupled with the report of the Public Analyst, clearly constitute the offence, punishable under Criminal Misc. No. M-7925 of 2008 6 Section 7/16 of the Prevention of Food Adulteration Act, 1954. The submission of the Counsel for the petitioner, in this regard, therefore, being without merit, must fail, and the same stands rejected.

8. The second contention of the Counsel for the petitioner, to the effect, that no averment, was made, in the petition, that the petitioner, was incharge of and responsible to the Company, for the day to day running of its affairs, and, as such, the complaint, was liable to be quashed, it may be stated here, that the petitioner, has described himself, as Director of M/s Ajit Singh Om Parkash Ltd., Naya Bazar, Delhi, the manufacturing Company. No doubt, in specific terms, in the complaint, it was not stated, that the petitioner, being the Director, was incharge of and responsible to the Company, for the running of its day to day business, yet, it did not absolve him of his liability. He being a Director of the company, was vicariously liable for the commission of offence, punishable under Section 7/16 of the Prevention of Food Adulteration Act, 1954. Section 17(i)(a) (ii) of the Food Adulteration Act, 1954, reads as under:- “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.”

9. In Paresh P. Rajda Vs. State of Maharashtra, 2008(2), Apex Court Judgements, 413 (SC), the principle of law, laid down, was to the effect, that the complaint, could not be quashed merely, on the ground, that there was no averment therein, that the Chairman, Criminal Misc. No. M-7925 of 2008 7 Joint Managing Director, and the Directors, were incharge of and responsible to the company for the conduct of its business. In Malwa Cotton & Spinning Mills Ltd. Vs. Virsa Singh Sidhu & others, 2008(3), Apex Court Judgements, 65 (SC), it was held, that an allegation, in the complaint, that the named accused, were Directors of the Company in itself, would usher in the element of their acting for and on behalf of the Company and of their being in charge of the Company. A person, in the commercial world, having a transaction, with a Company is entitled to presume that the Directors of the company are in charge of the affairs of the Company. Similar principle of law, was laid down, in N. Rangachari Vs. Bharat Sanchar Nigam Limited, 2007(2), Apex Court Judgements, 540 (SC), and Atul Kohli and another Vs. State of Punjab and another, 2006(4), Criminal Court Cases, 452 (P&H). The submission of the Counsel for the petitioner, being without merit, must fail, and the same stands rejected.

10. In this case, the sample was found to be misbranded and not adulterated. Section 13(2) only relates to the sending of copy of the report of the Public analyst, if the sample is found to be adulterated. The provisions of Section 13(2) of the Act, therefore, do not apply to this case.

11. For the reasons recorded above, Criminal Misc. No. M-7925 of 2008, being devoid of merit, must fail, and the same stands dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case. Criminal Misc. No. M-7925 of 2008 8

12. Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned, immediately.

15.03.2010 Amodh (SHAM SUNDER) JUDGE