ORDER

1. This petition under section 482 of Cr.P.C. has been filed for quashment of criminal complaint filed by the respondent, which is pending before the Court of Judicial Magistrate First Class, Sardarpur, District Dhar (M.P.) in Criminal Complaint No.RCT 361/2014.

2. The necessary facts for the disposal of present petition in short art that on 15.10.2013 Shri Mahendra Kumar Verma, Food Safety Officer, Food and Drug Administration, Dhar inspected the premises of Swastik Agency at Raigarh. Co-accused Rakesh Jain, who is the Proprietor of the said Agency was present at the said premises. Shri Mahendra Kumar Verma took a sample of Cadbury Dairy Milk Fruit & Nut Chocolate, which was sent to the Public Analyst, Bhopal. As per the report dated 1.11.2014 the same was declared to be adulterated as it was insect infected.

3. During the investigation, it has been found that the aforesaid product was manufactured by Cadbury India Limited and being the Nominee/Assistant Manager, present petition Puneet Sharma has been implicated as an accused. After completion of investigation, written complaint has been filed by Shri Mahendra Kumar Verma, Food Safety Officer before the JMFC, Sardarpur, District Dhar, who took cognizance of the offence and issued process against the accused person and vide order dated 15.11.2011 charges under section 26(2)(i) and 59 of the Food Safety and Standards Act, 2006 (hereinafter referred to as “Act of 2006”) have been framed against the petitioner. Hence, this petition is filed.

4. Learned counsel for the petitioner submits that the petitioner has been implicated as an accused as he is the nominee of the Company but no other allegation has been levelled against him. The alleged offence has been committed by the Company and its officers cannot be made vicariously liable unless the Company itself is also implicated as an accused. There is no evidence available against the petitioner to connect him with the aforementioned offence. As per section 66 of the Act of 2006 Company is not arrayed as an accused, therefore, there is no prima facie case exists against the petitioner. Hence, in absence of the main accused, prosecution is not maintainable against the petitioner.

5. Per contra, learned counsel for the respondent / State submitted that petitioner is the nominee of the Cadbury India Limited and since the offence is committed by the Company, therefore, the applicant is being prosecuted being the nominee of the Company. Hence, no interference is warranted by this Court.

6. Heard learned counsel for both the parties at length and perused the record.

7. The undisputed facts are that the samples of Cadbury Dairy Milk Fruit & Nut Chocolate was found to be adulterated therefore, complaint has been filed against the applicant and the other co-accused persons. This is also an undisputed fact that present applicant has been arraigned as an accused because he is the nominees of the Cadbury India Limited, which is the manufacturer of the Cadbury Dairy Milk Fruit & Nut Chocolate. The Cadbury India Limited has not been arraigned as an accused.

8. Now the moot question before this Court is that whether the Primary accused is the Company or not? If the Company is an accused, then whether the prosecution of office bearer of the Company is permissible without arraigning the Company as an accused or not?

9. Besides, the proviso to section 66 of the Act of 2006 makes it very clear that where a person In-charge of an Establishment or Unit nominated by the company as responsible for the food safety shall be the person who will be liable for contraventions in respect of such Establishment, Branch or Unit. Undisputedly, in this particular case, the manufacturer of the offending food product is based at District Solan and the petitioner is the Assistant Manager-cum-Nominee, who works at the Solan Establishment which manufactures the offending products. Once, his inclusion as an accused has been made in this case, then only such a nominee cannot