IMPORTANT POINT
In a prosecution against firm and its partners for the food article found misbranded, in absence of specific averments that partners were in-charge of and responsible to firm for conduct of its business prosecution against such partners was liable to be quashed.

JUDGMENT

G.S. Sistani, J.—This is a petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as, “Cr.P.C.”) for quashing of complaint case No.100/2004 under Sections 7 and 16 of the Prevention of Food Adulteration Act, 1954, (hereinafter referred to as, “PFA Act”) and the proceedings emanating there from against the petitioners.

2. A complaint under Section 16 of the PFA Act was filed against 14 accused persons, including the petitioners herein, namely M/s Surya Kiran Trading Corporation(The Supplier-Firm), Late Shri Kishan Gupta (one of the partners of M/s Surya Kiran Trading Corporation) who died during the pendency of the case in the trial court; Shri Subhash Chand Gupta, Shri Hobbit Gupta, Shri Vipul Gupta, and Smt. Pooja Gupta, who other partners of M/s Trading Corporation.

3. Learned counsel for the petitioner submits that on 25.6.2002, the Food Inspector, Sh. S.K. Sharma had purchased a sample of “Pass-Pass” (Mouth freshener) for analysis from Shri Om Prakash Tolani. The said sample consisted of poly packs of “Pass-Pass” (Mouth freshener). After carrying out the sampling procedure, the sample was sent to the Public Analyst. According to the report of the Public Analyst, the sample was misbranded for the following reasons:

“The sample is misbranded as the ingredients declared are misleading because saffron is absent which was declared as one of the ingredients in Pass-Pass pouch”.

4. Learned counsel for the petitioner submits that, accordingly, the Director of the Department of Prevention of Food Adulteration, Govt. of NCT of Delhi, accorded the consent under Section 20 of the Act for launching prosecution against the accused persons for the aforesaid offences.

5. In so far as the petitioners are concerned, it is alleged in the complaint that M/s Surya Kiran Trading Corporation is a partnership firm having six partners (as mentioned above), Shri Kishan Gupta, one of the partners had since died and Master Archit Gupta being a minor was not prosecuted. It was further stated in the complaint that the firm M/s Surya Kiran Trading Corporation had not appointed any nominee, and, therefore, al the partners except the minor partner were liable along with the partnership firm.

6. Learned counsel for the petitioner submits that the sample was got re-analysed from the Central Food Laboratory and the certificate of analysis issued by the Central Good Laboratory gave the opinion that the sample contravened Rule 42 (ZZZ) (17) of the PFA Rules, 1955.

The Director, Central Food Laboratory opined that the sample of Rajni Supari (which had been supplied free with the pouches of Pass-Pass) contravened Rule 47 of the PFA Rules, 1955.

7. The petitioners who are the partners of M/s Surya Kiran Trading Corporation are aggrieved by the order dated 17.5.2004, passed by the learned MM summoning the petitioners as the accused persons before him, to face the trial. It is the case of the petitioners that the proceedings against: the petitioners stand vitiated ab intio on the ground that there is not even a whisper in the entire complaint that any of the petitioners herein were in charge of and responsible to the partnership-firm for the conduct of the business of the firm. Section 17 of the Act provides for vicarious liability as follows:

“17. Offences by companies— (1) Where an offence under this Act has been committed by a company:

(a) (i) the person, if any, who has been nominated under sub-section (2) to be in-charge of, and responsible to, the company for the conduct of the business of the company (hereafter in this section referred to as the person responsible), or

(ii) where no person has been so nominated, every person who at the time the offence was committed was in-charge of, and was responsible to, the company for the conduct of the business of the company.

8. Learned counsel for the petitioners submits that in the absence of even a slightest suggestion in the entire body of the complaint that any of