KAMALBENS BHALERAO Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioners have filed this petition under Article 227 of the Constitution of India challenging the order passed by the learned Judicial Magistrate First Class, Vankaner dated 10th March, 1999 below Ex.35 in Criminal Case No. 166 of 1998 and also the order dated 15.1.2005 passed in Criminal Revision Application No. 16 of 1999 confirming the order of the learned Judicial Magistrate First Class, Vankaner rejecting the application for discharge in connection with the complaint alleging offence under Sections 2(ix)(k), Rule 32(e), Section 7(2) and (7) and Section 16 of the Prevention of Food Adulteration Act, 1954.

(2.) This court issued Rule vide order dated 29.4.2005 and the matter was posted for final hearing. Shri Dave, learned counsel appearing on behalf of the petitioner states at the bar that the grounds for discharge based on applicability of Rule 32(e) of the Prevention of Food Adulteration Rules, 1955 (herein after referred to as 'the Rules' for short) is not available to the petitioners and hence, he does not press into service the submissions on this behalf. He requests that the matter be examined on the basis that, the grounds for discharge that have been urged before both the courts below in respect of Rule 32(e) of the Rules, are not available to the petitioners in view of the ruling of this court.

(3.) Shri Dave, learned counsel for the petitioners submits that the petitioners are the members of the Managing Committee of the respondent No. 3 Company and he produces on record the scheme for the Management and Administration of Shri Mahila Griha Udyog Lijjat Papad, which is ordered to be taken on record. He submits that the Company has not furnished any names before the concerned authority and therefore, under section 17 of the Prevention of Food Adulteration Act, 1954, the complainant has named all the Members of the Managing Committee as accused for the alleged offence. Shri Dave has submitted that the trial Court as well as the revisional court ought to have appreciated the fact that in view of the specific provision under the Prevention of Food Adulteration Act, 1954 (herein after referred to as 'the Act' for short), only the person, in-charge of the day to day business of the firm can be subjected to the prosecution for the offences under the Act. The petitioners, who are not associated with the day to day functioning of the Rajkot Unit of the Company, therefore, could not have been subjected to the prosecution for the offences under the Act. This aspect ought to have been appreciated by the learned trial Court as well as the learned revisional court and therefore, extra ordinary jurisdiction under Article 227 of the Constitution of India is invoked by the petitioners for quashing and setting aside the impugned orders. The trial Court and the revisional court ought to have appreciated the submission on behalf of the petitioner that they were not in charge of the day to day affairs of the Rajkot Unit and therefore, the discharge application ought to have been allowed.