1. This application under section 482 of the Code of Criminal Procedure [for short “the Code”] has been filed for quashing the proceedings in Criminal Case No.15830/2011 pending before the Special Judicial Magistrate, Indore.

2. The facts giving rise to this application are that the applicant is a Director of M/s. Bharti Retail Limited (in brief “the Company”). The company is engaged in the business of operating retail stores under the name and style ‘Easy Day’ having its outlet at many places throughout the country. On 29.11.2010, Food Inspector visited retail shop situated at Malhar Mega Mall, Indore and took samples of ‘butter coconut biscuit’ and ‘mix fruit biscuit’ and the same were sent to Public Analyst for chemical examination. As per the report dated 4.1.2011, samples were misbranded. Hence, Food Inspector filed a complaint against the applicant-Manik Hiru, Sandeep Singh, Indrajeet Walia and Ranjan Bharti Mittal. Learned Magistrate took cognizance on 12.8.2011 and issued bailable warrant against accused persons including applicant. Being aggrieved the applicant has filed this application. In the application it is made clear that earlier co-accused Indrajeet Walia has filed the application under section 482 of the Code (Miscellaneous Criminal Case No.993/12) for quashing the proceedings on other grounds. However, this Court vide order dated 18.12.2014 has dismissed the same and the Hon’ble apex Court declined to grant special leave to appeal.

3. This application is filed on two grounds :

(i) Applicant being a Director cannot be prosecuted without arraigning of a company as an accused and there is no averment in the complaint that the applicant is incharge of, and responsible to the company for conduct of the business of the company.

(ii) The section 52 of FSSA came into force on 29.7.2010. This provision has overriding effect on PFA Act. Thus, the prosecution under PFA Act after 29.7.2010 is not competent.

4. The first ground that the company has not arraigned as an accused and the necessary averments about the applicant are missing, therefore, the applicant being a Director cannot be prosecuted. This objection has been raised by the co-accused Indrajeet Walia in the earlier application Miscellaneous Criminal Case No.993/2012 and this Court after considering the submissions vide order dated 18.12.2014 rejected the objection, which reads as under :

“In this respect, record of the lower Court is perused. It transpires that after lifting samples from the store of the Company, a letter was written to the Company regarding details of nominee under section 17(2) of the Act. However, the food inspector did not find, the papers were filed in time, therefore, all the Directors of the Company were arraigned as an accused, admittedly without including the Company as accused. This aspect can be taken into consideration by the learned Magistrate at the time of hearing of the case. Under section 482 of CrPC, this issue cannot be decided. Unless the lower Court decides the issue according to the principles laid down by Hon’ble Supreme Court and this Court in various cases, then only matter can be examined by this Court under section 482 of CrPC. The issue involves many factual and legal issues and unless evidence is recorded in this regard, no inference can be drawn. Therefore, the applicant is at liberty to raise these objections/issues before the lower Court.”

5. Now, it is not proper to consider the ground raised by the applicant whose case is similar to the case of co-accused Indrajeet Walia and keeping view that against the order of this Court Indrajeet Walia filed SLP before Hon’ble apex Court and the same has been dismissed.

6. Learned senior counsel for the applicant, in regard to second ground submits that misbranding is punishable under section 52 of the Food Safety Standard Act, 2006 (in brief “FSSA”). As per the notification S.O.1855 (E) dated 29.7.2010 section 52 of the FSSA came into force on 29.7.2010 and section 89 FSSA