ASHOK KUMAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) ON January 28, 1980 the Food Inspector had purchased 'khandsari' for analysis from M/s Pawan Trading Co. Local which had purchased the same from M/s Amar Trading Co. Marsh Ganj Shamli (U.P.). The petitioner is the partner of M/s Amar Trading Co. On public Analysis reporting that the sample of 'Khandsari' was adulterated the Food Inspector filed a complaint Under Section 7/16 of Prevention of Food Adulteration Act, 1954 (the Act) against. M/s Pawan Kumar Trading Co. Losal and M/s Amar Trading Co. Shamli. The petitioner presented M/s Amar Trading Co. in his capacity as a partner thereof but he himself was not an accused in the complaint along with his partnership firm. In the course of enquiry into the said offence the learned trial court, on 30.12.80, ordered to implied Smt. Rajni, Shri Kanwar Vir Singh and Sri Om Prakash all partners of M/s Amar Trading co. Shamli as accused in the case. However, the learned Sessions Judge, Sikar vide his order dated 27.7.82 made in Revision application No. 12 of 1981 set. aside that order of the learned Magistrate. The case therefore, proceeded against M/s Amar Trading Co. Shamli and Pawan Kumar of M/s Pawan Kumar Trading Co. Losal and on 11.12.89 both the above named accused were charged with the offence Under Section 7/16 of the Act through their respective counsel.

(2.) AFTER close of complainant's evidence, Pawan Kumar accused in person and M/s Amar Trading Co. Shamli through its partner Ashok Kumar the petitioner were examined Under Section 313 Cr. P.C. on 27.3.90 and final argument in the case were heard. The case was fixed for pronouncement of judgment. The case could not be decided on the date fixed and was adjourned to 30.6.93. On 30.6.93 the learned Magistrate observed that though the above named three partners of M/s Amar Trading Co. Shamli could no longer be summoned as co -accused in the case due to the order of the learned Sessions Judge dated 27.7.82 yet since the petitioner had all along been appearing for and on behalf of the aforesaid partnership firm, he was required to be impleaded as an accused. Expressing his intention to consider the petitioner as an accused in the case in that way the learned Magistrate required the counsel to address him on the point whether charge be framed against the petitioner and he be examined Under Section 313 Cr. P.C. On 26.8.93 the learned Magistrate held that since the petitioner had put in appearance on almost all dates of hearing and was thus well acquainted of the nature of offence and character of evidence brought on record by the prosecution in support of such offence there was no necessity of either framing a charge against him or examining him Under Section 313 Cr. P.C. It is that order, as passed by the learned Magistrate, which is being challenged by the petitioner through this petition Under Section 482 Cr. P.C.

(3.) SECTION 17 of the Act deals with offences by companies. It says that where an offence under the Act has been committed by a company the person who has been nominated by such company to be incharge of and responsible to it for the conduct of its business or, where no person has been so nominated, every person who, at the time the offence was committed, was incharge of, or responsible to the company for the conduct of its business, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. As per definition of the term 'company' given in explanation below Sub -section (4) of Section 17 a Company includes a firm also. A reading of the provisions contained in Section 17 shows that it is by virtue of the deeming provisions that a person nominated to be the incharge of or responsible to, the company for conducting its business and, in his absence, every person, who, at the time the offence was committed was incharge of or responsible to it for the conduct of its business, shall be liable to be proceeded against and punished accordingly. It is settled position of law that a deeming provision in a statute should be strictly construed and its scope should not be liberally extended beyond the area it was intended to operate in. Section 17 makes, in the cases of commission of an offence under the Act, two categories of persons liable to be proceeded against and punished accordingly. In the first category fall the persons nominated to be the incharge of or responsible to the company/firm for the conduct of its business or, in the absence of such nomination, every person, who at the time the offence was committed, was incharge of and responsible to the company/firm for the conduct of business Both the types of persons in this category are mutually exclusive' in as much as that it a person has been nominated to be the incharge of and responsible to the company/firm for the conduct of its business the other type of person who may be a Director/employee of the company or a partner of the firm can not be simultaneously proceeded against and punished. This position of law is clear from the use of the conjunction 'or' between sub clauses (i) and (ii) of Clauses (a) of Sub -section (1) of Section 17 of the Act. In the second category falls the company or the firm, as the case may be. The use of the conjunction 'and' between clauses (a) and (b) of Section (1) of Section 17 does not mean that they are mutually inclusive and must co -exist together for successful prosecutions Under Section 17. Either of the two categories of persons, mentioned in clauses (a) and (b) of Section 17(1) may, co -jointly or severally, be prosecuted and the absence of one in a prosecution would not be fatal for the prosecution of the other. The only requirement for their joint or separate trial, and even of one with no joint or separate trial of the other, is that the offence, alleged to have been committed, must be proved to have been committed by the company /firm.