CAV Judgment

1. Feeling aggrieved by and dissatisfied with the judgment and order of acquittal dated 03.01.2002, passed by the learned Judicial Magistrate, First Class, (Municipal Court) at Surat, in P.F.A. Case No.25 of 1997, for the offences punishable under Sections 7(1) and 16 of the Prevention of Food Adulteration Act, 1954 ('the PFA Act' for short), the appellant - Surat Municipal Corporation has preferred this appeal under Section 378 of the Code of Criminal Procedure, 1973 (for short, "the Code").

2. The prosecution case as unfolded during the trial before the learned trial Court, in a nutshell, is that on 25.10.1996, the appellant - the complainant i.e. Food Inspector, upon instructions from the L.H.A., has visited the 'Mirch Masala Restaurant' at Surat; at that time, accused No.3 was present and after primary investigation, he has visited the kitchen, which was very unhygienic, there were defects in water connections, water was stored, many cockroaches and flies were there, there is filth and oil on the platform; and that took sample of 600 g.m. curd from storage curd of 3 k.g. kept in aluminum pot, divided in three parts, added preservative, sent one sample to the laboratory for analysis; and that there was a report from the laborary with regard to the sample concerned that there is less fat of 2.2% instead of 6% as per rules; and that after obtaining the permission, the complaint was filed by the complainant against the accused in the Court of learned Judicial Magistrate, First Class (Municipal Court), Surat being P.F.A. Case No.25 of 1997.

3. The accused pleaded not guilty to the charge and claimed to be tried. Thereafter, the prosecution led various evidence mentioned in paragraph 2 of the impugned judgment and on the conclusion of the trial, the learned J.M.F.C. (Municipal Court), Surat, passed the impugned judgment and order.

4. In order to bring home the charge, the prosecution has examined the complainant and has produced documentary evidence before the trial Court.

5. After hearing both the parties and after analysis of evidence adduced by the prosecution, the learned trial Judge acquitted the accused for the offences for which the charge was framed, by holding that the prosecution has failed to prove the case beyond reasonable doubt.

6. Learned advocate for the appellant - Corporation has pointed out the facts of the case and having taken this Court through both, oral and documentary evidence, recorded before the learned trial Court, would submit that the learned trial Court has failed to appreciate the evidence in true sense and perspective; and that the trial Court has committed error in acquitting the accused. It is submitted that the learned trial Court ought not to have given much emphasis to the contradictions and/or omissions appearing in the evidence and ought to have given weightage to the dots that connect the accused with the offence in question. It is submitted that the learned trial Court has erroneously come to the conclusion that the prosecution has failed to prove its case. It is also submitted that the learned Judge ought to have seen that the evidence produced on record is reliable and believable and it was proved beyond reasonable doubt that the accused had committed an offence in question. It is, therefore, submitted that this Court may allow this appeal by appreciating the evidence led before the learned trial Court.

7. As against that, learned advocate for the respondent/s would support the impugned judgment passed by the learned trial Court and has submitted that the learned trial Court has not committed any error in acquitting the accused. The trial Court has taken possible view as the prosecution has failed to prove its case beyond reasonable doubt. Therefore, it is prayed to dismiss the present appeal by confirming the impugned judgment and order passed by the learned trial Court.

8. In the aforesaid background, considering the oral as well as documentary evidence on record from the papers available (as no R & P is available), independently and dispassionately and considering the impugned judgment and order of the trial Court, the following aspects weighed with the Court :

          8.1 It transpires that the complaint has been filed under Section 7(1) and Section 16 of the PFA Act 1984 with respect to the offence of allegedly selling adulterated food. If the cause title of the complaint is taken into consideration, the same states that accused No.1 is a partnership firm, accused Nos.2.1 to 2.3 are stated to be the partners of the said partnership firm and accused Nos.3 and 4 have been joined as nominees of the said partnership firm. Though the xerox copy of the partnership deed has been produced vide Exh.38, neither the original deed has been produced nor the complainant has been able to prove that accused Nos.2.1 to 2.3 are the partners and accused Nos.3 and 4 are the nominees of accused No.1 - a partnership firm. Thus, the complainant has miserably failed to prove the said facts.

          8.2.1 Further, it is the case of the complainant that the incident had taken place on 26.10.1996. The sample was sent to the public analyst on 30.10.1996 and the report was received from the public analyst on 07.11.1996. The sanction for filing the complaint was received on 07.07.1997 and the complaint is filed thereafter on 21.07.1997. There is no justification given by the complainant for filing the complaint after nine months from the date of receiving the report from the public analyst. Moreover, if the entire complaint is taken into consideration, the said complaint is filed under Section 16 of the PFA Act. If the facts of the present case are taken into consideration, the complaint is filed against the partnership firm. Therefore, it is the case of the complainant that the offence has been committed by the partnership firm (accused No.1).

          8.2.2 At this stage, Section 17 of the PFA Act is relevant to refer to, which reads as under :

          "[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 (hereinafter 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; and

          (b) the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly :

          Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence.

          (2) Any company may, by order in writing, authorise any of its directors or managers (such manager being employed mainly in a managerial or supervisory capacity) to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission by the company or any offence under this Act and may give notice to the Local (Health) Authority, in such form and in such manner as may be prescribed, that it has nominated such director or manager as the person responsible, along with the written consent of such director or manager for being so nominated.

           Explanation.--Where a company has different establishments or branches or different units in any establishment or branch, different persons may be nominated under this sub- section in relation to different establishments or branches or units and the person nominated in relation to any establishment, branch or unit shall be deemed to be the person responsible in respect of such establishment, branch or unit.

          (3) The person nominated under sub- section(2) shall, until --

          (i) further notice cancelling such nomination is received from the company by the Local (Health) Authority; or

          (ii) he ceases to be a director or, as the case may be, manager of the company; or

          (iii) he makes a request in writing to the Local (Health) Authority, under intimation to the company, to cancel the nomination [which request shall be complied with by the Local (Health) Authority.] whichever is the earliest, continue to be the person responsible :

          Provided that where such person ceases to be a director or, as the case may be, manager of the company, he shall intimate the fact of such cesser to the Local (Health) Authority :

          Provided further that where such person makes a request under clause (iii), the Local (Health) Authority shall not cancel such nomination with effect from a date earlier than the date on which the request is made.

          (4) Notwithstanding anything contained in the foregoing sub-sections, where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary, or other officer of the company, [not being a person nominated under sub- section (2) such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

          Explanation.--For the purposes of this section-

          (a) "Company" means any body corporate and includes a firm or other association of individuals;

          (b) "director", in relation to a firm, means a partner in the firm; and

          (c) "manager" in relation to a company engaged in hotel industry, includes the person in charge of the catering department of any hotel managed or run by it.]"

          8.2.3 In view of above, if Section 17 of the PFA is taken into consideration, it states that nothing contained in Section 17 shall render any person liable to any punishment provided in this Act, if he proves that the offence is committed without his knowledge. In the present case, it is not the case of the complainant that accused Nos.2 to 4 (the partners) were actively involved in the day to day function of accused No.1 (a partnership firm).

          8.3 In the case of Pepsico India Holdings Pvt. Ltd. Versus Food Inspector & Anr. reported in 2010 (2) FAC 310, wherein, it is observed by the Hon'ble Apex Court in paragraph Nos. 37 and 39 as under :

          "37. On the question of liability of the Directors of the Company with respect to an offence alleged to have been committed by the Company, the High Court went beyond the ratio of the decision of this Court in S.M.S. Pharmaceuticals Ltd.'s case (supra) upon holding that the principles set out in the said decision could not be understood in any mechanical or rigid manner. Instead, the High Court based its judgment on the decision of this Court in N. Rangachari Vs. Bharat Sanchar Nigam Ltd. [(2007) 5 SCC 108], which was a case where the complaint clearly and categorically alleged that the named Directors were in charge of and responsible to the Company for the conduct of its business. It is in such circumstances that the prayer for quashing of the proceedings was rejected.

          38. Both the questions regarding the failure of the Central Government to frame Rules to define the Laboratories, where samples of food could be analysed by the Public Analyst, or to define the validated methods of analysis and the liability of the Directors, who are the Appellants before us, are of great importance for the purpose of bringing home a charge against the accused for violation of the provisions of Rule 65 of the 1955 Rules and Section 2(ia)(h) of the 1954 Act and for holding that the Sweetened Carbonated Water manufactured by the Appellants was adulterated in terms of the said Rules. Since the range indicated as to the limits of tolerance of the presence of pesticides in different articles of food, including Sweetened Carbonated Water, which was included in the Table appended to Rule 65(2) with effect from 17th June, 2009, provides very little or practically no margin for error, the selection of Laboratories and the prescription of tolerance limits for different articles of food acquires great significance. The High Court does not appear to have considered the implications of the failure of the Central Government to frame Rules for the aforesaid purpose. Even the view taken by the High Court with regard to Grounds 3, 4 and 5 is not very satisfactory, as the mere presence of pesticide residue does not ipso facto render the article of food adulterated. Tolerance limits have been prescribed in the Table for this very purpose and the subsequent inclusion of Sweetened Carbonated Water seems to indicate so and leans more in favour of the Appellants. The High Court also appears to have overlooked the fact that the percentage of pesticides found by the Public Analyst in the Sweetened Carbonated Water manufactured by the Appellants was within the tolerance limits subsequently prescribed in respect of such product.

          39. As mentioned hereinbefore, the High Court erred in giving its own interpretation to the decision of this Court in S.M.S. Pharmaceuticals Ltd.'s case (supra), which was reiterated subsequently in several judgments, some of which have been indicated hereinabove, and relying instead on the decision of Rangachari's case (supra), the facts of which were entirely different from the facts of this case. It is now well established that in a complaint against a Company and its Directors, the Complainant has to indicate in the complaint itself as to whether the Directors concerned were either in charge of or responsible to the Company for its day-to-day management, or whether they were responsible to the Company for the conduct of its business. A mere bald statement that a person was a Director of the Company against which certain allegations had been made is not sufficient to make such Director liable in the absence of any specific allegations regarding his role in the management of the Company."

          8.4 The prosecution has not been able to prove that accused Nos.2.1 to 2.3 (the partner of partnership firm) were responsible for the conduct of the business or were the in- charge of the adulterated food. The complainant has not produced any evidence to show the direct involvement or responsibility of the said accused in the offence under Section 7(1) and Section 16 of the PFA Act.

          8.5 The complainant has also not been able to establish individual roles of accused Nos.2.1 to 2.3 - the partner in the affairs of the business of accused No.1 - a partnership firm. On careful scrutiny of the evidence, there is no proof of responsibility and involvement of the accused in the adulterating process. Therefore, for the purpose of prosecuting accused Nos.2.1 to 2.3 (the partners) that they are vicariously liable for the offence under the Act committed by accused No.1 - a partnership firm, it was necessary for the complainant to state in the complaint that accused Nos.2.1 to 2.3 (the partners) were the in-charge of the partnership firm and were responsible for the affairs / conduct of the business of the partnership firm at the relevant time, when the offence under the Act was committed.

          8.6 So far as the proviso sub-section 1 of Section 12 of the Act is concerned, the same can only be invoked if the provision of sub-clause (a) of Section 17 of the Act are satisfied inasmuch as the said section is open for accused Nos.2 to 4 to prove before the Court that the offence was committed without his knowledge and he has exercised all due diligence to prevent the commission of such offence and should not be held liable for the offence in question.

          8.7 In the present case, there are no specific allegations made in the complaint to the effect that accused Nos.2 to 4 (the partners) were, in fact, in-charge and were responsible for the conduct/affairs of the business of accused No.1 (a partnership firm). Therefore, the basic ingredients for prosecuting accused Nos.2 to 4 (the partners) on the ground that they are vicariously liable for the offence committed by accused No.1 (a partnership firm) are not satisfied.

          8.8 In the case of Sanjay Dutt and Others v. State of Haryana and Another, reported in 2025 SCC Online SC 32, the Hon'ble Apex Court has held as under:

          "11. It appears that the Courts below proceeded on the erroneous assumption that the three Appellants herein being responsible officers of the company are liable for the alleged offence. While a company may be held liable for the wrongful acts of its employees, the liability of its directors is not automatic. It depends on specific circumstances, particularly the interplay between the director's personal actions and the company's responsibilities. A director may be vicariously liable only if the company itself is liable in the first place and if such director personally acted in a manner that directly connects their conduct to the company's liability. Mere authorization of an act at the behest of the company or the exercise of a supervisory role over certain actions or activities of the company is not enough to render a director vicariously liable. There must exist something to show that such actions of the director stemmed from their personal involvement and arose from actions or conduct falling outside the scope of its routine corporate duties. Thus, where the company is the offender, vicarious liability of the Directors cannot be imputed automatically, in the absence of any statutory provision to this effect. There has to be a specific act attributed to the director or any other person allegedly in control and management of the company, to the effect that such a person was responsible for the acts committed by or on behalf of the company."

9. In view of the aforesaid observations and the law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, 1973 no case is made out to interfere with the impugned judgment and order of acquittal. In view of the above facts and circumstances of the case, on my careful re-appreciation of the entire evidence, I found that there is no infirmity or irregularity in the findings of fact recorded by learned trial Court and under the circumstances, the learned trial Court has rightly acquitted the respondent/s - accused for the elaborate reasons stated in the impugned judgment and I also endorse the view/finding of the learned trial Court leading to the acquittal.

10. In view of the above and for the reasons stated above, the present Criminal Appeal fails and the same deserves to be dismissed and is dismissed, accordingly. Record & Proceedings be remitted to the concerned trial Court forthwith.