1. A Food Inspector of Food and Drug Administration, Aurangabad has filed the complaint against a vendor of 'Manikchand Gutkha'. The owners of vendor Company, M/s. Shailesh Trading Company, Aurangabad, are also made accused. The petitioners are Directors of manufacturing Company M/s. Dhariwal Tobacco Products Ltd., Unit No. 2, Borhade Mala, Shirur, District Pune and they are also accused in the case. The complaint is filed for contravention of provisions of sections 2 (ia) (a), section 7 (i), 7 (v) r/w. Rule 62 which is punishable under section 16 (i) (a) (ii) and section 17 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the Act" for short). Samples of 'Manikchand Gutkha' were collected by the Food Inspector and they were found to be adulterated. Harmful and prohibited substance Magnessium Carbonate was detected in the samples. Both the sides are heard.

2. In the present proceeding, prayer is made for quashing of the proceeding of aforesaid private complaint, which is at present given number as S.C.C. No. 24 of 2011 and which is pending in the Court of Judicial Magistrate, First Class, Aurangabad. Following two grounds were argued in this proceeding for the petitioner.

(i) One R.E. Dayma has been appointed as nominee of the Company under section 17

(2) of the Act and so, the prosecution of the petitioners, Directors, is not possible, and

(ii) There are no specific allegations made against the petitioners as required under section 17 of the Act and so, the proceeding cannot be allowed to continue against them.

3. As per the record, the Food Inspector collected samples of 'Manikchand Gutkha' on 24.7.1997. It is the case of petitioners that Shri. Dayama was appointed as nominee on 25.8.1997 (para 9 of the petition). It is contended that as the report of analysis was received on 13.4.1998 and as the complaint was filed on 17.4.1998 and then cognizance was taken by the Magistrate of offences, the relevant date is 13.4.1998 for consideration of the existence of nominee. A copy of so called nomination made in form VIII of the Appendix of the Act is produced on the record. This document shows that it was handed over to Local (Health) Authority on 25.8.1997 and it was accepted on that day by the nominee.

4. For the petitioners, reliance was placed on the case reported as All India Prevention of Food Adulteration Journal VII-1998 page No. 334 Supreme Court of India [State of Rajasthan Vs. Sanjay Kumar and Ors.]. On the basis of observations made in this case by the Apex Court, another submission was also made for the petitioner that the relevant date for consideration of nomination would be the date on which the Magistrate takes cognizance of the offence. This Court has carefully gone through the facts of the reported case and the observations made by the Apex Court. The Apex Court has considered the provisions of sections 468 and 469 of Criminal Procedure Code, the provisions of limitation for taking cognizance of the offence. The Apex Court has held that section 468 (1) (b) of Cr.P.C. would be applicable for taking cognizance of the offence for the purpose of limitation when the case is required to be filed after getting report of the Government Analyst. The case was filed under the provisions of Drugs and Cosmetics Act, 1940. It is held that the date of knowledge, that the drugs offered for sale were sub-standard, is relevant and so, the date of report of Government Analyst would be relevant. Thus, the reported case was altogether on different point. In the case like present one, the date of offence would be the date of collection of sample by the Officer of the Department, though for the purpose of limitation, the aforesaid observations made by the Apex Court need to be used. The relevant provisions on this point are present in the Act itself and they show that there is no force in the aforesaid submissions made for the petitioners.

5. As per the record the nomination is accepted on 25.8.1