IMPORTANT POINT
Directors can be held vicariously liable for company offenses under the Prevention of Food Adulteration Act if they are responsible for the company's conduct, and delays in prosecution do not automatically invalidate the case.

JUDGMENT :

1. The applicants have filed present application under Section 482 of the Code of Criminal Procedure and Article 227 of the Constitution of India for quashing and setting aside the prosecution/complaint of the respondent against the applicants and the process issued by the Court for an offence under Section 7(1) read with Sections 2(ia) and 2(ia)(m) punishable under Sections 16 and 17 of the Prevention of Food Adulteration Act, 1954 (for short, “the Act”).

2. The applicants are the Directors of the Company. M/s Bunge Agri Business India Ltd is engaged in the manufacturing of vanaspati, margarine, butter, etc. The company is duly registered under the Companies Act.

3. The learned counsel for the applicants argued that there were no averments in the Complaint that the applicants were in charge and responsible for the business of the company. In the absence of such averment or evidence as required under Section 17 of the Act, no vicarious liability could be fastened on the Directors. Section 17 of the Act provides that when the offence is committed by the company, only the person in charge and responsible for the business of the company can be prosecuted. Nothing was there before the learned Judicial Magistrate First Class, Udgir, showing that the applicants were in charge and responsible for the business of the company. Hence, the process issued against them is prima facie illegal.

4. It was further argued that in this case, the samples were drawn on 31.05.2004 and were analyzed on 15.07.2004. The Local Health Authority, on 13.08.2004, directed the Food Inspector to take an action against the concerned. The Complaint was filed in the Court thirty-five months after taking the samples and thirty- three months after the date of analysis. Therefore, the applicants could not get opportunity to send the samples to the Central Food Laboratory for reanalysis. It was not a ritual formality but a statutory requirement of law. They may exercise their right if the seized samples were in a fit condition for analysis. The applicants have lost the right to get the sample reanalyzed from the Central Food Laboratory. Hence, they are entitled to claim that prejudice has been caused to them.

5. In short, he argued that when the rights were accrued, the samples were not fit for analysis. Therefore, they have lost their valuable rights to disapprove the allegations. Inordinate delay in lodging the Complaint resulted in failure to keep the samples fit for chemical analysis at the instance of the accused as provided under Section 13(2) of the Act. In the circumstances, the petition became infructuous. The impugned order was passed mechanically and without application of mind. Since the legal right of the applicants under Section 13(2) of the Act has been violated, it would be futile to go for the trial.

6. Per contra, the learned A.P.P. for the State argued that the complainant has specifically averred about the role attributed to the applicants in the Complaint. The applicants were manufacturers. The Food Inspector, on the same day served the relevant papers of action upon the seller of the samples. The notice under Section 11(1)(a) of the Act was sent to the Sales Department of the Company immediately on 29.12.2004. The analysis report was received on 15.07.2004. The accused supplied the names of the responsible officers belatedly. Therefore, the sanction to prosecute the applicants was delayed. However, the analysis was done diligently. Some delay was caused in obtaining the sanction. Therefore, the Complaint was delayed. The Directors are presumed to be responsible for the business unless a person responsible for day-to-day business is nominated. The application deserves no merit. Hence, it is liable to be dismissed.

7. Let us deal with the issue of who is responsible for the offence committed in this case.

8. Section 17 of the Act speaks of the offences by companies. Sub-section (1) of Section 17 of the Act is where an offence under this Act h