Judgment:
Surinder Singh, J.
1. The present petition has been preferred by the petitioner under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure for quashing the proceedings against him in case No. 296-3 of 2006 pending in the court of learned Judicial Magistrate, Court No. II, Shimla, under Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954, 'for short the Act', allegedly for selling the adulterated 'Paneer' to the Food Inspector, which was kept for human consumption in the Hotel.
2. In brief, the facts of the case can be stated thus. 'M/s Hotel Eve' is situated on the Mall Shimla. The said premises are used for 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes. lodging and catering. Kamal Kumar, the real brother of the petitioner, was the Manager and was found conducting the business of the said Hotel by the Food Inspector at about 12.15 p.m. on 28.12.2005. The Food Inspector picked up the sample of 'Amritsari Papar' and simultaneously also took up the sample of 'Paneer', for analysis as per procedure which were kept for the sale to the general public as per list in the Menu-Card, which was also taken into possession. He prepared the seizure memo which was signed by Kamal Kumar and the witness and also by the Food Inspector. The sampling process was allegedly done in accordance with law. One of the samples of 'Paneer' was sent for analysis to the Public Analyst, which was found to have contained moisture content 76.93% against the maximum prescribed standard of 70%. The milk fat content of dry matter 10.27% against the minimum prescribed standard of 50%. The sample of 'Paneer' was therefore, found to be adulterated. The notice under Section 13 (2) of the Act was allegedly sent. The Food Inspector, thereafter presented the necessary documents to the Chief Medical Officer, Shimla for obtaining written consent to launch the prosecution against Kamal Kumar Verma, The Manager of the said Hotel, which was accorded. Thereafter the proceedings against Kamal Kumar, Manager and 'M/s Hotel Eve', The Mall Shimla, through its nominee/partners were launched by the Food Inspector by filing a complaint.
3. Shri Kamal Kumar, The Manager of the Hotel Eve put in appearance before the court. He was alleged to be responsible for the day to day business of the Hotel. The presence of the nominee/Partner of the Hotel could not be procured. In the meantime, Kamal Kumar, aforesaid filed an affidavit averring therein that he was responsible for the day to day business of the Hotel and its owner Shri Raj Kumar, the present petitioner had been living abroad. He had no role whatsoever in the management of the Hotel, therefore, prayed for accepting his affidavit and requested to delete the name of accused No. 2.
4. The Food Inspector had resisted the aforesaid contention on the allegations that no nomination was filed by the owner of the Hotel as such he was liable to be prosecuted in the complaint.
5. The learned trial court vide order dated 15.2.2007 observed that the petitioner herein being owner of the hotel was liable to be prosecuted and the contention of Kamal Kumar was rejected. When the petitioner did not put in appearance, despite repeated opportunities, thus he was declared as a proclaimed offender but in between Sh. Kamal Kumar had died and proceedings were ordered to be abated against him.
6. Shri Atul Jhingan, Advocate, appearing for the petitioner has vehemently argued that in view of the affidavit filed by Shri Kamal Kumar, the petitioner ought not to have been summoned as it was only Kamal Kumar, who was found in charge of the business and further that complaint filed by the Food Inspector does not contain any allegation against the present petitioner that the offence, aforesaid was committed with his consent or connivance or was attributable to any neglect on his part.
7. Shri J.S. Guleria, learned Assistant Advocate General for the respondent has submitted that the affidavit filed by Shri Kamal Kumar has no relevance in so far as the petitioner is concerned. Further according to him, the case of the petitioner falls within the ambit of Sub-section (4) of Section 17 of the Act and the petitioner is liable to be prosecuted for the aforesaid offence.
8. I have given my thoughtful consideration to the rival contentions of the parties and have carefully examined the record of the case.
9. The first contention of the learned counsel for the petitioner that in view of the affidavit of Sh. Kamal Kumar, petitioner was not liable to be arrayed as an accused is worth rejecting because the said affidavit cannot be treated as nomination as per the provisions of Sub-section (2) of Section 17 of the Act.
10. As a matter of fact, Section 17 (1) of the Act is a deeming provision which provides that when an offence under the Act is committed by a Company/Firm, the person In-charge and responsible to it, is held to be guilty and to be liable should be proceeded against with a view to fix culpability. Sub-section (2) provides for a nomination, so that, there is no difficulty in fixing responsibility. Where, however no person has been nominated, liability is extended to any person who was in-charge of or responsible to be company/firm in the conduct of its business. The prosecution is to find out whether any person has been nominated in terms of Section 17 (2) of the Act and if a person has been nominated, to proceed against him, so that, he can be punished, if the company is found guilty, whereafter the question of punishing the person of any of the categories indicated in Clause (a) of Sub-section (1) arises. However, reverse is not necessary to be established. The section does not require that the person in-charge of the Company should be found guilty before the Company/Firm is held liable. Merely because a person is not nominated, the liability does not vanish and along with the company the person who was in-charge of or responsible to the company in the conduct of the business is rendered liable.
11. Sub-section (1) of Section 17 of the Act makes all the person in- charge of or responsible to the Company/Firm in the conduct of the business liable to the procedure and process in case there is no nomination in terms of Sub-section (2). Where a person is nominated, that person is made liable in terms of Clause (a) of Sub-section (1) of Section 17 of the Act.
12. However, the scope is wider where there is no nomination and the person who is in-charge of or responsible to the company in the conduct of business is liable subject of course, to the proviso which casts onus on the person who claims that the offence was committed without his knowledge and he exercised all due diligence to prevent the commission of such offence.
13. In the instant case, the affidavit filed by Kamal Kumar is of no consequence and it does not fall within the parameters of Section 17 (2) of the Act. Therefore, he could not have been said to be nominated of the said firm since Kamal Kumar had died, therefore, proceedings against him were rightly abated.
14. In so far as the petitioner herein is concerned there is nothing against him in the complaint. The only allegation by which he is sought to be implicated is in para 8 of the complaint which reads as under:
That accused Sh. Kamal Kumar Verma S/o late Sh. Hans Raj Verma, Manager of M/s Hotel Eve, The Mall Shimla was having adulterated Paneer under Section 2 (ia) (m) in his possession meant for sale to general public and sold the same to me and thereby committed an offence punishable under Section 16 (1) A(a) (i) of P.F.A. Act 1954 read with Section 7 of the Act. M/s Hotel Eve, The Mall Shimla through its Nominee/Partners is also liable under the Act.
15. As already stated above, in case of an offence against the company, which term also includes the firm, it is the nomination as visualized by sub section (2) of Section 17 of the Act, which is to be proceeded initially. However, if it is prima facie proved that the offence was committed with the consent etc. of some other person other than the nominee, he can also be proceeded against as laid down under Sub-section (4) of Section 17 of the Act. In other words, the bare perusal of Section 17 of the Act reveals that the Legislature has an intention to proceed against the person responsible at the first instance and only if it is proved that the offence has been committed with the consent etc. of any Director and/or others named under Sub-section (4), of Section 17 of the Act it is only thereafter open to the Court to proceed against him/them.
16. The present shape to Section 17 was given by Amendment Act of 1976. Thus, it is plainly discernible from its scheme that it is not open to the court to work against it on any ground more specifically when it is not averred in the complaint that such a person was Manger, Secretary or other officer of the company/firm not being a person nominated under Sub-section (2) of the Act, consented to or connived to commit the offence under the Act or is attributable to him/them on account of any neglect on his /their part.
17. Thus, as noted above, there is no allegation of the above nature in the complaint against the petitioner to justify him to be arrayed as accused in this case. Therefore, summoning him as an accused in the case without any such allegation or in absence of any such prima facie proof is wrong and illegal. Therefore, in view of this situation, the summoning of the petitioner is indefensible, thus the order declaring him a proclaimed offender is also wrong and illegal, therefore, set aside. The petition is, allowed and proceeding against the petitioner as an accused in absence of specific allegations in the complaint is hereby quashed. However, it would be open to the trial court to implead any other person or such other partner(s) of the firm as an accused qua whom the consent, connivance or neglect is proved within the indictment of Sub-section 17 ibid.
18. The petition is accordingly disposed of.