CRIMINAL REVISIONAL JURISDICTION v. The State of West Bengal & Anr.

i. The impugned proceeding bristles with illegalities and infirmities which is bad in law and thus, the same is liable to be quashed forthwith. ii. The petitioners herein is innocent and in no way involved with the commission of the alleged offence. iii. The impugned proceedings is an abuse of process of Court which if allowed to be continued for a single day more beyond the stage it has already reached, it will degenerate itself into a weapon of harassment and as such, the same is liable to be quashed forthwith forthwith for the ends of justice. iv. On bare perusal of the complaint it would be evident that except some vague and omnibus allegations, no specific allegations are there against the petitioners to substantiate the charges as alleged therein as well as to show the active involvement of the petitioners in commission of the alleged offences. v. The Designated Officer empowered under the Food Safety and Standards Act, 2006 can only launch a prosecution and/or file a complaint for violation of provisions of the said Act and as such the impugned proceeding is bad in law. vi. The impugned complaint has been preferred without following the mandatory requirements as enunciated in the Food Safety and Standards Act, 2006 and thus the impugned proceeding is liable to be quashed forthwith. vii. Under the Food Safety and Standards Act it is mandatory before 6 launching a prosecution that an analysis report of examination of the sample food must be obtained in order to determine whether such food has fallen below the standard and thus an offence under the said Act has been made out or not. However, on bare perusal of the complaint it would be evident that neither any sample of the expired drink was collected for analysis/examination nor any analysis report was obtained prior to filing of the complaint and hence the impugned proceeding is bad in law as the same has been initiated without following the mandatory requirements as mentioned hereinabove. viii. Under Section 27(2)(a) a wholesaler or distributor can only be liable for supplying an article after the date of its expiry. Hence, the petitioners being the manufacturer cannot be held liable and/or prosecuted for contravention of Section 27(2)(a) of the Food Safety and Standards Act. ix. The petitioners being the manufacturer of the soft drink have delivered the articles to the distributor much prior to the date of expiry. Thus, by no figment of imagination it can be stated that the petitioners were having dominion over such articles or entrusted with such articles or converted such articles for their own use as the petitioners at no point of time were in possession of such articles. Hence, the necessary ingredients as required for making out the 7 offence under Section 406 of the Indian Penal Code are clearly absent in the complaint and as such the impugned proceeding is liable to be quashed forthwith. x. The Hon’ble Apex Court in its solemn dictum has categorically held that the allegations as levelled in the complaint even if taken to be true at its face value does not make out a case against the accused and are so absurd that any man of ordinary prudence can reach to a just conclusion that no sufficient grounds are there for continuation of proceeding, the proceeding should be quashed forthwith. xi. It is expedient in the interest of justice to uphold the dignity of law and the impugned proceeding should be quashed forthwith.

9. The impugned proceeding is non-maintainable and liable to be quashed for non-adherence to the following provisions of law of The Food Safety and Standards Act, 2006: (a) Section 27(2)(a) of the Act, prescribes liability for only wholesaler or distributor for any articles of food supplied after the date of its expiry; On perusal of petition of complaint, it shall be evident that the petitioner has been described as the manufacturer of M/s Diamond Beverages Pvt. Ltd. Thus, the petitioner being the manufacturer cannot be brought with the dragnet of Section 27(2)(a) of the Act. (b) Section 50 of the said Act, for which summons was issued against the petitioner prescribes penalty only and no punishment has been set out or mandated. Thus, no criminal prosecution and/or trial can lie or is 8 maintainable since the said provision of law does not prescribe any punishment. (c) Section 42 of the Act enshrines procedure for launching prosecution which mandates that Food Safety Officer shall be responsible to draw sample of foods or articles, inspect and send the foods or articles for analysis. The food analyst shall prepare an analysis report and send the same to the Designated officer within 14 days whereupon, the designated officer shall act in terms of section 36 of the Act which falls under Chapter VII. However, in this impugned proceeding, no such compliance has been done. (d) Section 66 of the Act prescribes offences by companies which conceptualize the principle of vicarious liability and is pari materia to section 141 of the N.I. Act. Now, it is a settled position of law as enunciated by Hon’ble Supreme Court of India that non-arraigning the company as an accused where offence is committed by the company and making the directors of the said company only as an accused, shall make the entire proceeding liable to be quashed. Thus, it is imperative to make the company an accused in terms of section 66 of the Act. In this impugned proceeding also, the company namely M/s Diamond Beverages Pvt. Ltd being the manufacturer has not been made an accused and thus, the impugned proceeding is liable to be quashed. (e) With regard to Section 406 IPC for which summons was also issued, it is stated that the impugned complainant is conspicuously silent with 9 regard to making out the necessary ingredients of the alleged offence. There is no iota of averment which would show "entrustment" or "dominion over the property" in favour of the complainant by the petitioner which are the sine qua non for making out an offence under section 406 IPC.

10. The relevant Sections of the Food Safety and Standards Act, 2006 are mentioned hereinbelow: i. 27. Liability of manufacturers, packers, wholesalers, distributors and sellers.— … (2) The wholesaler or distributor shall be liable under this Act for any article of food which is— (a) supplied after the date of its expiry; or to Designated Officer with a copy ii. 42. Procedure for launching prosecution.—(1) The Food Safety Officer shall be responsible for inspection of food business, drawing samples and sending them to Food Analyst for analysis. (2) The Food Analyst after receiving the sample from the Food Safety Officer shall analyse the sample and send the analysis report mentioning method of sampling and analysis within fourteen days Commissioner of Food Safety. (3) The Designated Officer after scrutiny of the report of Food Analyst shall decide as to whether the contravention is punishable with imprisonment or fine only and in the case of contravention punishable with imprisonment, he shall send Commissioner of Food Safety for sanctioning prosecution. (4) The Commissioner of Food Safety shall, if he so deems fit, decide, within the Central Government, as per the gravity of offence, whether the matter be referred to,— the period prescribed by recommendations within fourteen days 10 (a) a court of ordinary jurisdiction in case of offences punishable with imprisonment for a term up to three years; or (b) a Special Court in case of offences punishable with imprisonment for a term exceeding three years where such Special Court is established and in case no Special Court is established, such cases shall be tried by a court of ordinary jurisdiction. (5) The Commissioner of Food Safety shall communicate his decision to the Designated Officer and the concerned Food Safety Officer who shall launch prosecution before courts of ordinary jurisdiction or Special Court, as the case may be; and such communication shall also be sent to the purchaser if the sample was taken under Section 40. iii. 50. Penalty for selling food not of the nature or substance or quality demanded.—Any person who sells to the purchaser’s prejudice any food which is not in compliance with the provisions of this Act or the regulations made thereunder, or of the nature or substance or quality demanded by the purchaser, shall be liable to a penalty not exceeding five lakh rupees: Provided that the persons covered under sub-section (2) of Section 31, shall for such non-compliance be liable to a penalty not exceeding twenty-five thousand rupees. iv. 66. Offences by companies.—(1) Where an offence under this Act which has been committed by a company, 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, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that where a company has different establishments or branches or different units in any establishment or branch, in-charge of such the concerned Head or the person establishment, branch, unit nominated by the company as 11 responsible for food safety shall be liable for contravention in respect of such establishment, branch or unit: Provided further 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 or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.—For the purpose of this section,— (a) ―company‖ means any body corporate and includes a firm or other association of individuals; and (b) ―director‖, in relation to a firm, means a partner in the firm.

11. In the case of Aneeta Hada Vs. Godfather Travels and Tours Private Limited1, the Hon’ble Supreme Court held as follows: “53. It is to be borne in mind that Section 141 of the Act is concerned with the offences by the company. It makes the other persons vicariously liable for commission of an offence on the part of the company. As has been stated by us earlier, the vicarious liability gets attracted when the condition precedent laid down in Section 141 of the Act stands satisfied. There can be no dispute that as the liability is penal in nature, a strict construction of the provision would be necessitous and, in a way, the warrant. … 1 (2012) 5 SCC 661 12

59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the drag-net on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh which is a three-Judge Bench decision. Thus, the view expressed in Sheoratan Agarwal does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada is overruled with the qualifier as stated in para 51. The decision in Modi Distillery has to be treated to be restricted to its own facts as has been explained by us hereinabove.”

12. In the case of Indian Oil Corpn. Vs. NEPC India Ltd. and Others2, the Hon’ble Supreme Court held as follows: ―12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few—Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234] , State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059] , Central Bureau of Investigation v. Duncans Agro Industries Ltd. [(1996) 5 SCC 591 : 1996 SCC (Cri) 1045] , State of Bihar v. Rajendra Agrawalla [(1996) 8 SCC 164 : 1996 SCC (Cri) 628] , Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259 : 1999 SCC (Cri) 401] , Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269 : 2000 SCC (Cri) 615] , Hridaya Ranjan Prasad Verma v. State of Bihar [(2000) 4 SCC 168 : 2000 SCC (Cri) 786] , M. Krishnan v. Vijay Singh [(2001) 8 SCC 645 : 2002 SCC (Cri) 19] and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122 : 2005 SCC (Cri) 283] . The principles, relevant to our purpose are: 2 (2006) 6 SCC 736 13 (i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. (v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking 14 remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.

13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513] this Court observed: (SCC p. 643, para 8) ―It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to 15 prevent abuse of the process of any court or otherwise to secure the ends of justice.‖

13. The Hon’ble Supreme Court in Indian Oil Corpn. (Supra) further observed as follows: “21. We will next consider whether the allegations in the complaint make out a case of criminal breach of trust under Section 405 which is extracted below: in any ―405. Criminal breach of trust.—Whoever, being manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits ‗criminal breach of trust‘.‖

22. A careful reading of the section shows that a criminal breach of trust involves the following ingredients: (a) a person should have been entrusted with property, or entrusted with dominion over property; (b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or wilfully suffer any other person to do so; (c) that such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust. The following are examples (which include the illustrations under Section 405) where there is ―entrustment‖: (i) An ―executor‖ of a will, with reference to the estate of the deceased bequeathed to legatees. (ii) A ―guardian‖ with reference to a property of a minor or person of unsound mind. (iii) A ―trustee‖ holding a property in trust, with reference to the beneficiary. (iv) A ―warehouse keeper‖ with reference to the goods stored by a depositor. (v) A carrier with reference to goods entrusted for transport belonging to the consignor/consignee. (vi) A servant or agent with reference to the property of the master or principal. 16 (vii) A pledgee with reference to the goods pledged by the owner/borrower. (viii) A debtor, with reference to a property held in trust on behalf of the creditor in whose favour he has executed a deed of pledge-cum-trust. (Under such a deed, the owner pledges his movable property, generally vehicle/machinery to the creditor, the movable property to the creditor and the creditor in turn delivers back the pledged movable property to the debtor, to be held in trust and operated by the debtor.) thereby delivering possession of