Judgment

SEN, J.:- In this appeal, by special leave, from the judgment of the Delhi High Court, two questions arise which are one of very general importance. The first is, in a case where the manufacturer of an article of food is a company, which has nominated a person under sub-s. (2) of S. 17 of the Prevention of Food Adulteration Act, 1954, as the person responsible, whether the sales manager at one of its branches can be prosecuted for an offence punishable under S. 16 (1) (a) read with S. 7 (i) of the Act, when the article of food sold at the branch is found to be adulterated within the meaning of S. 2 (ia) of the Act. The second is, whether after the introduction of the new S. 17 by Act 34 of 1976, when an offence is committed by a company, which has nominated a person responsible under S. 17 (2), it is not permissible to prosecute any other officer of the company not being nominated under sub-s. (2), unless there is allegation that the offence had been committed with the consent or connivance of, or was attributed to, any, neglect on the part of such officer.

2. Upon the first question the facts lie within the smallest possible compass. On June 23, 1977 the Delhi Administration filed a complaint under S. 7 (i) read with S. 16 (1) (a) and S. 17 against (1) M/s. Ahmed Oomer Bhoy, Ahmed Mills, Bombay, manufactures of the well-known Postman brand of refined groundnut oil, (2) their distributors M/s. Gainda Mull Hem Raj, New Delhi, a partnership firm, and its Managing Partner Mehar Chand Jain, (3) M/s. Amar Provision & General Store, Netaji Nagar Market, New Delhi and its owner Amrik Lal, the retailer, (4) Y. A. Khan, Manager Quality Control, Ahmed Mills appointed by the manufacturers as the person responsible under S. 17 (2) of the Act, and (5) the two Sales Managers, Delhi Branch of M/s. Ahmed Oomer Bhoy, manufacturers, I. K. Nangia and Y. P. Bhasin.

3. It was alleged that on August 31, 1976, S. D. Sharma, Food Inspector, New Delhi Municipal Committee lifted a sample of Postman brand refined groundnut oil from M/s. Amar Provision & General Store, which was sold/supplied to it by M/s. Gainda Mull Hem Raj on August 24, 1976, and the same by the Public Analyst by his report dated September 9, 1976, was found to be adulterated due to the presence of castor oil (not an edible oil). It was further alleged that this adulterated article of food was supplied/sold to M/s. Gainda Mull Hem Raj by M/s. Ahmed Oomer Bhoy on Aug. 20, 1976 through its Sales Managers at Delhi, I. K. Nangia and Y. P. Bhasin.

4. The Metropolitan Magistrate, Delhi by his order dated April 1, 1978 found that there was a prima facie case against M/s. Ahmed Oomer Bhoy, the manufactures of the Postman brand refined groundnut oil, their distributors at Delhi M/s. Gainda Mull Hem Raj and M/s. Amer Provision Store, the retailer, as well as against Y. K. Khan, the Quality Contrl Manager, Ahmed Mills, but declined to issue any process against the respondents I. K. Nangia and Y. P. Bhasin, the two Sales Managers of M/s. Ahmed Oomer Bhoy at Delhi observing that though they had effected the sale of the adulterated article of food they were not concerned with the manufacture of the article in question but had only effected the sale thereof. He accordingly, dismissed the complaint against them holding that their prosecution was misconceived.

5. The Delhi Administration moved the High Court in revision but it declined to interfere.

6. There can be no doubt that the order made by the learned Metropolitan Magistrate refusing to issue any process against the respondents is wholly unwarranted. It cannot be said that there is no material for presuming that these respondents had not committed an offence and, therefore, it was not open to the learned Metropolitan Magistrate to come to the conclusion that there was no basis for proceeding against them. The test as laid down by this Court in the State of Bihar v. Ramesh Singh (1978) 1 SCR 257, is that at the initial stage, if there is a s