AFZAL ABDUL KHALEK AHMED Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The petitioner, who is Director of M/s. Recon Oil Industries Ltd., having its registered office at M. Vasanji Road, J.B. Nagar, Andheri (E), Mumbai 400 059 questions impugned order passed by learned Judicial Magistrate, First Class, Kannad dated 9th May 2003, whereby the application Exh. 27 in the pending R.C.C. No. 20/1996 was rejected. Heard submissions at the Bar. It is the case of the petitioner that he had applied before the learned trial Magistrate to drop the criminal proceedings against him on the ground that prosecution is not maintainable against the petitioner, Director of a Company, sought to be prosecuted on the ground that it has committed an offence punishable under Prevention of Food Adulteration Act, 1954. It is submitted that complainant can prosecute only the nominee, who is declared as in-charge of and responsible to the accused-company for the conduct of its business. Director may be indicted as accused only in the absence of declaration of such nominee. Learned Advocate for the petitioner submitted that in the present case the nominee was already declared and the complainant indicted him as accused No. 3 besides the accused-company. Therefore, the petitioner could not have been indicted on the ground that company has committed an offence punishable under the Act, merely because he is Director of the accused-company. Learned Advocate for the petitioner submitted that it is an admitted fact that nominee was appointed by the accused-company, who alone can be statutorily responsible to the company for the conduct of its business and if any offence is committed by the company punishable under the provisions of Food Adulteration Act 1954.

(2.) Section 17(1) of the Food Adulteration Act, 1954 reads thus:

(3.) Learned A.P.P. found it difficult to counter these submissions, as she is not in a position to dispute that the accused-company had on 18.8.1993 declared Mr. Gyanbahaddursing Suryapalsing, Supervisor of the company as nominee by resolution of the company to be in-charge and responsible to the accused-company Recon Enterprises Private Ltd. since the complainant has already prosecuted said nominee indicting him as accused No. 3, while also naming the company as accused No. 5. Thus, indicting the petitioner also as accused No. 4 was contrary to law enacted under Section 17(1) (a) of the Prevention of Food Adulteration Act, 1954. The prosecution can subject the indicted accused to unnecessary harassment when it is not essential to indict him according to law. Suffice it to say that when company was indicted as an accused in addition to the nominee, there was no need to indict any other Director without accusation that he was in charge of and was responsible to the company for the conduct of its business. Assuming for the sake of argument that indicting such Director in addition to nominee is essential. Even otherwise in the course of trial if essential, the prosecution may apply to the trial Magistrate to add the accused in view of Section 319 of the Cr. P.C. At this stage, however, prima facie it appears that when Company itself is prosecuted as an accused and its nominee is also named as an accused was declared as in charge of and responsible to the company for the conduct of its business, the accused No. 4 (petitioner) ought not to have been indicted by the complainant as an accused.