Sankar Prasad Mitra, J.
1. Learned Advocate Mr. Tapan Deb Nandi appears on behalf of the petitioner Nos. 1, 2 and 3 and he submits affidavit-of-service. Let this affidavit-of-service be kept with the records.
None appears for the opposite parties in spite of service of notice.
2. The application under Section 401 read with Section 482 of the Code of Criminal Procedure filed by the petitioners is moved by the learned Advocate Mr. Tapan Deb Nandi.
3. In this application the petitioners have sought for quashing of the proceeding in Case No. C-735 of 1991 T.R. 14/93 under Section 54/63/74 of the Standards of Weights and Measures Act, 1976 pending before the learned Judicial Magistrate, First Class, 5th Court, Sealdah. Mr. Nandi referred true copy of the complaint lodged against the petitioners by the Inspector of Legal Metrology, certified copy of the order dated 4.9.1991 whereby the learned Additional Chief Judicial Magistrate, Sealdah, South 24-Parganas took cognizance of the offence on the basis of the complaint from the Inspector of Legal Metrology and the order dated 8.9.1993 passed by the learned Judicial Magistrate, 5th Court, Sealdah, South 24-Parganas who by the said order rejected the application filed by the petitioners praying for their discharge on the ground of maintainability of the proceeding against them. Mr. Nandi referring to above documents submits that the petitioner No. 1 is the company and petitioner Nos. 2 and 3 have been described in the complaint as Directors of the company M/s. Krishna Chandra Dutta (Cookme) Pvt. Ltd.
4. It is submitted by Mr. Nandi that the facts disclosed in the complaint do not show that the petitioner Nos. 2 and 3 at the time of commission of offence besides being Director of the company, were in charge and responsible for day-to-day affairs of the company as well as the company.
5. According to Mr. Nandi since there is no such averment in the complaint, the prosecution against the petitioner Nos. 2 and 3 is not maintainable and the learned Magistrate erroneously rejected their petition filed in this regard in the Court below.
6. Mr. Nandi drawing my attention to Section 74 of the Standards of Weights and Measures Act, 1976 as also a decision reported in 1998 Cr. LJ 2281 (Calcutta High Court) Indian Oil Corporation Ltd. v. S.A. Neyazi, submits that unless there is any specific averment in the complaint showing the petitioners are incharge as Director and responsible for day-to-day affairs of the company, they cannot be prosecuted. He, therefore, submits that the impugned order dated 4.9.1991 taking cognizance of offence against the petitioner Nos. 2 and 3 as also the impugned order dated 8.9.1993 passed by the learned Magistrate rejecting the application filed by the petitioner Nos. 2 and 3, should be set aside by this Court and the proceeding against the petitioner Nos. 2 and 3 should be quashed for the ends of justice.
7. It appears from the complaint that the Inspector of Legal Metrology visited the factory premises M/s. Krishna Chandra Dutta (Cookme) Pvt. Ltd. at 8, Cossipore Road, Calcutta-700 002, PS Cossipore on 23.10.1990 at about 2.00 p.m. when none was found present excepting one employee Sri Kashi Nath Dutta who did not co-operate with the Inspector and produce papers and records relating to inter-State Trade of the product in spite of demand.
8. Thus, the Inspector seized some packages of Haldi powder found in the premises under Section 29(1) for the violation of Sections and Rules mentioned in the complaint punishable under Section 63 of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 and kept the seized article in his custody. As the employee Kashi Nath Dutta did not sign the seizure list nor did he agree to receive the copy of the same, the complainant also implicated Kashi Nath Dutta under Section 29(1)(a) as he obstructed the complainant in the lawful exercises of powers in discharging official duties and committed an offence punishable under Section 54 of the Standards of Weights of Measures Act, 1976. It is also alleged in the complaint that the company and its Directors petitioner Nos. 2 and 3 as manufacturer and packer of the said commodity have committed offence under Section 63 read with Section 74 of the Standards of Weights and Measures Act, 1976. So a complaint was lodged by the Inspector of Legal Metrology with a view to prosecuting the offenders under Sections 54, 63 and 74 of the Standards of Weights arid Measures Act and Rule 39 of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. The complaint simply defines the credence in respect of petitioner Nos. 2 and 3 as Directors of M/s. Krishna Chandra Dutta (Cookme) Private Ltd., petitioner No. 1 but in order to make them liable for prosecution under Section 74 of the said Act, something more is required.
9. Section 74(1) runs as follows:
If an offence under this Act is 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.
10. Therefore, in view of this section, a person can be held liable for the offence if at the time the offence was committed, he was in charge and was responsible to the company for the conduct of the business of the company as well as the company but, in the complaint there is no description of the roll which was played by the Directors petitioner Nos. 2 and 3 in the day-to-day affairs of the company. That apart, there is an averment in the complaint that these petitioners viz. petitioner Nos. 2 and 3 as Directors were at the time of offence was committed in charge of, and were responsible for, the conduct of the business of the company as well as the company.
11. Therefore, we can safely rely upon the decision reported in 1998 Cr. LJ 2281 (Calcutta High Court) Indian Oil Corporation Ltd. v. S.A. Neyazi. The complaint does not disclose any other fact so as to implicate the petitioner Nos. 2 and 3 with alleged offence besides disclosing the fact that they were the Directors of the company. Section 62 of the Act does not make the Managing Director of the company guilty of the offence merely by reason of the fact that he is the Managing Director of the company. The legal fiction created under the aforesaid provisions is applicable against any person who was in charge of, and was responsible to, the company for conduct of the business at the time when the offence was committed. A Managing Director ipso facto cannot be presumed to be a person in charge of, and responsible to, the company for the conduct of the business of the company.
12. Therefore, in absence of any specific averment in the petition of complaint in effect that the petitioner Nos. 2 and 3 as Directors of the company was in charge of, and was responsible to, the company for the conduct of the business of the company at the time when the offence was committed, the legal fiction cannot be pressed into service.
13. In this view of the matter, there would be no escape from the conclusion that the impugned prosecution against the petitioner Nos. 2 and 3 is liable to be quashed.
14. In the result, the revisional application succeeds in part. The impugned prosecution against the petitioner Nos. 2 and 3 be quashed. However, the prosecution will continue against petitioner No. 1 company and one Kashi Nath Dutta an employee of the said company.
15. All interim orders shall stand vacated and the same be intimated to the learned Court below.
16. The application is thus disposed of.
17. Xerox certified copy of this order, if applied for, be given to the learned Advocate for the petitioners.