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2009(1) Supreme 796
SUPREME COURT OF INDIA
(From Delhi High Court)
Dr. Arijit Pasayat & Asok Kumar Ganguly, JJ.
State (Govt. of NCT of Delhi) — Appellant
versus
D.A.M. Prabhu and Anr. — Respondents
Criminal Appeal No. 266 of 2009
(Arising out of SLP (Crl.) No. 2119 of 2007)
Decided on : 11-02-2009
(1956) SCR 154 – Relied upon.
(b) Essential Commodities Act, 1955 – Section 10 – If the contravention of the order made under Section 3 is by a company, the persons who may be held guilty and punished are (1) the company itself, (2) the person-in-charge of the company, and (3) an officer of the company – Any one, some or all of them may be prosecuted and punished – There is no statutory compulsion that the person-in-charge or an officer of the company may not be prosecuted unless he be ranged alongside the company itself – However, before the person in-charge or an officer of the company is held guilty in that capacity it must be established that there has been a contravention of the order by the company. (Para 8)
(1984)4 SCC 352; (2004)12 SCC 195 – Relied upon.
(c) Code of Criminal Procedure, 1973 – Section 482 – Where the stand as taken by the respondents was essentially the defence which is to be considered at the time of trial, threshold interference would not be in order. (Para 10)
Facts of the case :
1. On 23.01.1988, a complaint was lodged by the Enforcement Inspector with the Station House Officer of Police Station Moti Nagar, New Delhi, alleging that Swatanta Bharat Mills had, by declaring and stamping wrong fibre compositions for the cloth, contravened the provisions of the Textile Commissioner’s notification dated 23.11.1981 and clause 17 of the Textile (Control) Order, 1986 rendering themselves liable for penal action for violation of the order made under Section 3 of the Act punishable under Section 7 thereof.
2. On 06.05.1988, the charge sheet was filed in court, but there was only one accused, namely, A.K. Rohtagi, who was shown in Column No.4 for the offence, inter-alia, under section 7 of the said Act.
3. Thereafter, the accused A.K. Rohtagi appeared and was released on bail. On 4.12.1990, a supplementary challan was filed wherein the said A.K. Rohatgi was again shown in Column No.4. However, in Column No.2, the respondents along with R.C Kesar and Lala Bansidhar were shown in Column No.2. It appears that on 18.02.1991, respondent No.2 V.K. Malhotra appeared in court who was discharged.
4. The court came to the view that the respondents alongwith other two mentioned in Column No.2, namely, R.C. Kesar and Lala Bansidhar be also summoned.
5. The High Court found that Swatantra Bharat Mills was nothing but a unit of the body corporate known as DCM Ltd. But it cannot be called to be an association of individuals. So holding, the proceedings so far as the respondents are concerned were quashed.
Finding of the Court :
The impugned judgment is unsupportable.
Result : Appeal allowed.
JUDGMENT
Dr. Arijit Pasayat, J. —
1. Leave granted.
2. Challenge in this appeal is to the judgment of a learned Single Judge of the Delhi High Court quashing the order passed by learned Special Judge under the Essential Commodities Act, 1955 (in short the ‘Act’).
3. Background facts as noted by the High Court are as follows:
On 23.01.1988, a complaint was lodged by the Enforcement Inspector with the Station House Officer of Police Station Moti Nagar, New Delhi, alleging that Swatanta Bharat Mills had, by declaring and stamping wrong fibre compositions for the cloth, contravened the provisions of the Textile Commissioner’s notification dated 23.11.1981 and clause 17 of the Textile (Control) Order, 1986 rendering themselves liable for penal action for violation of the order made under Section 3 of the Act punishable under Section 7 thereof. On 11.02.1988, an FIR was registered on the basis of the said complaint. On 06.05.1988, the charge sheet was filed in court, but there was only one accused, namely, A.K. Rohtagi, who was shown in Column No.4 for the offence, inter-alia, under section 7 of the said Act. On that date, the Court passed the following order:
“New challan filed today. It be checked and registered. Accused person be summoned for 09.06. 1988.”
Thereafter, the accused A.K. Rohtagi appeared and was released on bail. On 4.12.1990, a supplementary challan was filed and the court passed the following order:-
“Supplementary challan filed today. It be checked and registered. Accused be summoned for 18.12.1990 as main case is already fixed for 18.12.1990.”
In the supplementary charge sheet, the said A.K. Rohatgi was again shown in Column No.4. However, in Column No.2, the respondents along with R.C Kesar and Lala Bansidhar were shown in Column No.2. It appears that on 18.02.1991, respondent No.2 V.K. Malhotra appeared in court and on 22.02.1991, the court passed the following order: -
“V.K Malhotra mentioned in column No.2 is not required for the time being. He is being discharged. Only the accused persons mentioned in Column No.3/4 of the challan u/s 173 of Cr.P.C. was to be summoned and not those mentioned in Column No.2 of that report.”
On 24.04.1991, the earlier charge-sheet and the supplementary charges sheet were consolidated and the court observed that summons were issued to some of the accused and that the predecessor court by order dated 22.02.1991 had mentioned that these persons may not be summoned for the time being. Thereafter, the court directed that the matter should come up for arguments on 04.06.1991 on the question whether the persons named in Column No.2. be summoned as accused. In the order dated 11.2.1994, it is recorded as under:
“It appears that in the supplementary challan, four accused were placed in Column No.2 and have not been summoned so far probably on the presumption that they have not been sent up for trial by the police. However, a perusal of the final report in the supplementary challan would show that the police has specifically mentioned that there was a violation of Clause 17 of the Textile Control Order, 1986 by Swantantra Bharat Mills which is a company by virtue of Section 10 of the Act and the Managing Director, General Manager, Executive Director (Textile) and Supervisors, Folding Division are liable and should be summoned.”
Accordingly, the court came to the view that the respondents alongwith other two mentioned in Column No.2, namely, R.C. Kesar and Lala Bansidhar be also summoned.
The basic stand before the High Court was that the deeming provision of Section 10 of the Act cannot be applied to the facts of the case.
The High Court found that Swatantra Bharat Mills was nothing but a unit of the body corporate known as DCM Ltd. But it cannot be called to be an association of individuals. So holding, the proceedings so far as the respondents are concerned were quashed.
4. Learned counsel for the appellant-State submitted that true scope and ambit of Explanation appended to Section
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