B MAJUMDER Vs. BALLY JUTE CO

JUDGEMENT

(1.) THIS revisional petition is directed against the order no. 18 dated 3uly 30, 1983 passed by metropolitan Magistrate 8th Court, "calcutta in case no. C/1631 of 1982 under section 11 (1) read with section 12 of the Export (Quality control and Inspection) Act, 1963 (hereinafter referred to as the said act ).

(2.) THE facts are briefly as follows : -The accused opposite party submitted the application for obtaining a certificate of inspection for 95 bales hessian cloth to the sub-office at Howrah of the Export Inspection Agency, Calcutta on november, 6, 1980 The accused opposite party has declared the technical requirements including specifications stipulated in the export contract of the materials of Hessian Cloth 45"-12 OZ/40 plain 11x12 (cropped and calendered) 1000 metres/bales against serial no. 2 of the above intimation. On basis of the said application giving particulars the agency had issued the export worthy certificate on November 7, 1980 under section 7 of the said Act, on the Mill declaration in the aforesaid application for certificate to the effect that the consignment has been manufactured/proposed to satisfy the conditions relating to quality control under the said Act. But on a scrutiny of the Mill quality control record it had been ultimately discovered by the Agency that the Mill did not ensure conformity of the materials under export which were requirement of the recognised specification in as much as the specification and tolerances given i. the export contract for and construction were ignored. So it is alleged that the certificate of inspection against the said consignment had been obtained by the opposite party Bally Jute Mill by wrongful suppression of the contractual requirement. The accused opposite party has therefore, obtained the inspection certificate for the said consignment fraudulently and thus committed an offence within the meaning of section 11 (a)read with section 12 of the Export (Quality, Control and Inspection)Act, 1963. The Government of India by notification issued under section 14 of the said Act has authorised Sri D. C. Majumdar, Director, Export inspection Council, New Delhi to give and/or accord his sanction under section 14 of the said Act for initiating proceedings against the accused opposite party and Sri Majumdar being satisfied on the material placed before him gave his consent to initiate this criminal proceeding against the accused opposite party and authorised the present complainant petitioner to file complaint before the appropriate court of law and the complainant petitioner thereafter filed a petition of complaint on May 6, 1982 before the (Id. Chief Metropolitan Magistrate who transferred the case to the 5th Court Calcutta for disposal.

(3.) AFTER the service of the summons the accused opposite party entered appearance through its lawyer and made an application for dropping the said proceeding on the ground that under section 12 of the said Act whenever an offence is committed by a company all person in charge and/or responsible to the company at the relevant period have to be prosecuted. But in the present proceeding the company alone is being prosecuted and the company being a juristic person had no corporal existence and as such the company cannot have a mind for less a guilty mind or mere rea like an ordinary accused having physical existence. It is further submitted that legislature has prescribed a mandate under section 12 of the said Act for prosecuting every officer in charge and/or responsible to the company at the relevant period along with the company, if any violation is committed. But in the present case the present complainant has failed to prosecute any such officer as an accused. Consequently the proceeding is bad in law and should be quashed. The Learned Magistrate accepted the contention that company having no physical mind cannot have mens rea. So by the order dated 3uly 30, 1983 he allowed the application of the accused opposite party, dropped the proceeding and discharged the accused.