RAJIVKUMAR SATYAPAL GUPTA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Learned counsel for the petitioners brought to my notice that Petitioner No.2, Satyanarayan Surajmal Gupta died during the pendency of this Petition on or about 16.5.2009. Photostat copy of the certificate of death issued by the Government of National Capital Territory of Delhi India is brought to my notice. Copy thereof shall be kept on record. In the result, therefore, Petition stood abated as against petitioner no.2.

(2.) The petitioner nos. 1 and 3 (Petitioner no.2 is no more living) had questioned impugned order dated 8.2.2001 passed by the learned Judicial Magistrate First Class, Amalner below Exh.14 in RCC No.57/1998 pending on his file. The petitioners/original accused nos. 4 to 6 filed an application for their discharge from the case under section 17 (1)(A)(I) of the Prevention of Food Adulteration Act on the ground that in respect of the alleged offence resulting from sale and distribution of Tulsi Mix Gutkha, in the complaint there was no averment as required under the aforesaid section that the accused named as Director of the Company were in fact incharge of and responsible to the company for the conduct of business of the company. Secondly, it is the case of the petitioners that on 28.2.1994 the accused no.8 Shri Ashok Kumar Nagar was already appointed as "nominee" as incharge and responsible to the said company and he was nominated and authorized to exercise all such powers and take all such steps as may be necessary or expedite to prevent the commission of offence under the Act.

(3.) Learned counsel for the petitioners submitted that the fact that nominee was appointed is not in dispute and was in fact admitted by the prosecution. Secondly, there was no averment in the entire complaint to the specific effect that, the petitioner nos. 1 and 3 were incharge of and were responsible to the company indicted as accused nos. 7 and 9. Learned counsel for the petitioners invited my attention to the ruling in Nalin Thakur and Vs. State of Maharashtra,2004 1 FAC 68 to argue that specific averment in the complaint is necessary to the effect that accused concerned is responsible for the conduct of business of the company indicted as accused. My attention is also invited to section 17 offences by companies in the Prevention of Food Adulteration Act to emphasize the submission that, when any specific accused is nominated and admitted as nominee of the company prosecuted for alleged offence punishable under the act, in that case, it is the primary responsibility of the nominee for penal liability as alleged and not for director. Even assuming that Director can be prosecuted, it is necessary that there has to be a specific averment in the complaint as stated above to the clear effect that Director concerned were in charge of and were responsible to the company for its business and liable for the offence allegedly committed.