High Court of KeralaSingle Judge2012-02-14Quashed

Crl.M.C. No. 831 of 2005

Case / Petition Number:Crl.M.C. No. 831 of 2005

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N.K. BALAKRISHNAN
Judgment Date: 2012-02-14
Court Decision / Holding: Criminal M.C. is allowed; the proceedings against petitioners 2 and 3 are quashed. The court, however, clarifies that this order does not preclude the trial court from taking cognizance if and when evidence later demonstrates a case for cognizance against them.
Final Disposition: Quashed

Parties to the Case

Appellants / Petitioners

A.M.Raveendra n, S/O Mannath Mannan, Managing Director, M/S Pearl View Regency, 7/4 JKL, Thalassery
A.M.Divakaran, S/O Mannath Mannan, Chairman, M/S Pearl View Regency, 7/4 JKL, Thalassery

Respondents

Food Inspector, Mobile Vigilance Squad, Kozhikode-4
State of Kerala, rep. by Public Prosecutor, High Court of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• C. P. Mohammed Nias

Counsels for Respondents

• Sreejith V.S., Public Prosecutor

Case Synopsis & Summary

This High Court of Kerala, in Criminal Miscellaneous Case No. 831 of 2005, deals with a petition challenging proceedings under the Prevention of Food Adulteration Act, 1954 against two executives of Pearl View Regency. Accused Nos. 2 and 3 contend that they were not in charge of or responsible for the company’s conduct at the material time, and that the complaint contains no specific averments linking them to the adulteration or to the day-to-day management. The petition highlights that A1, described as General Manager, allegedly produced the PFA license to the Food Inspector, but there is no direct assertion in Annexure-A tying A2 (Managing Director) and A3 (Chairman) to the offending conduct. The petition also discusses Section 17(1) and 17(2) of the PFA Act, noting that liability can extend to a nominee only to the extent provided, and contends there are no prima facie materials against these petitioners. The court cites Municipal Corporation of Delhi v. Ram Kishan Rohtagi and State of Haryana v. Brij Lal Mittal to examine the scope of vicarious liability and the requirement that an accused be in charge of and responsible for the conduct of the business. Ultimately, finding no such allegations, the court quashes the proceedings against petitioners 2 and 3, while permitting the trial court to proceed if cognizable evidence emerges. The petition is disposed of accordingly.

Provisions of Law Cited

Prevention of Food Adulteration Act, 1954Section 17(1) of the Prevention of Food Adulteration Act, 1954Section 17(2) of the Prevention of Food Adulteration Act, 1954Drugs and Cosmetics Act, Section 34

Legal Doctrines & Maxims

Vicarious liability under statutes
In charge of and responsible to the company for the conduct of its business
Pari materia

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submit that they were not in charge of or responsible for the company’s conduct at the time of sampling; the complaint contains no specific averment of their role; reliance on Municipal Corporation of Delhi v. Ram Kishan Rohtagi is urged to stress that vicarious liability requires an allegation of in-charge-responsible conduct; Section 17(2) of the PFA Act mandates a showing of such in-charge responsibility, and the nomination under Section 17(1) of another employee does not automatically implicate A2/A3; Annexure-A fails to bind them to the company’s conduct; the court should quash the proceedings while reserving the option to cognize if future evidence proves a cognizable offense.

Contentions of Respondents

The respondents rely on the general doctrine of vicarious liability under the PFA Act, asserting that officers in charge of and responsible for the conduct of the company’s business may be liable; the complaint describes the company’s management and the A1’s role, and the legal framework permits action against corporate officers when in-charge conduct is shown; the absence of direct allegations against A2/A3 at this stage is argued not to preclude cognizance if subsequent evidence establishes their involvement.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Others	(1983) 1 Supreme Court Cases 1	Distinguished	Cited to discuss vicarious liability, but the court distinguishes this case because there were no allegations that A2/A3 were in charge or responsible for the company’s conduct in the present matter.
State of Haryana v Brij Lal Mittal and Others	(1998) 5 Supreme Court Cases 343	Positive	Cited to illustrate the principle of vicarious liability when a person is in charge and responsible; used to contextualize the standard, though the present case requires concrete allegations against the petitioners.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** ## **TUESDAY, THE 14TH DAY OF FEBRUARY 2012/25TH MAGHA 1933** ## **Crl.MC.No. 831 of 2005 ( )** **-------------------------CC.743/2002 of J.M.F.C.,THALASSERY** ## **PETITIONERS/PETITIONERS:** ## **------------------------** **1. A.M.RAVEENDRAN, S/O.MANNATH MANNAN, MANAGING DIRECTOR, M/S.PEARL VIEW REGENCY, 7/4 JKL, THALASSERY.** **2. A.M.DIVAKARAN, S/O.MANNATH MANNAN, CHAIRMAN, M/S.PEARL VIEW REAGENCY, 7/4 JKL THALASSERY.** **BY ADV. SRI.C.P.MOHAMMED NIAS** ## **COMPLAINANTS/RESPONDENTS:** ## **-------------------------** **1. FOOD INSPECTOR, MOBILE VIGILANCE SQUAD, KOZHIKODE-4 REP. BY FOOD INSPECTOR, THALASSERY MUNICIPALITY.** **2. STATE OF KERALA, REP. BY** - **PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR SRI.SREEJITH V.S.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14-022012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **STK** ## **Crl.MC.No. 831 of 2005** ## **APPENDIX** ## **PETITIONERS' ANNEXURES:** - **A: TRUE COPY OF THE COMPLAINT FILED BY THE 1ST RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, THALASSERY DATED 18/12/2002.** - **B: TRUE COPY OF THE RESOLUTION DATED 7/8/2001.** **C: TRUE COPY OF THE ORDER DATED 7/1/2005 IN C.M.P.NO.2144/2003 in C.C.743/02 OF THE JFCM THALASSERY.** ## **RESPONDENTS' ANNEXURES: NIL** **//TRUE COPY//** **P A TO JUDGE** **STK** ## **N.K. BALAKRISHNAN,J. -----------------------------------Crl.M.C. No. 831 of 2005 -----------------------------------------Dated this the 14[th] day of February , 2012** ## **ORDER** This petition is filed by accused Nos. 2 and 3 in a complaint filed under the provisions of the Prevention of Food Adulteration Act – 1954. The Food Inspector was stated to have taken sample of bengal gram powder from A5, the vendor. A1 was stated to be the General Manager of the company which runs the hotel. A4 is that company. The petitioners who are arrayed as A2 and A3 contend that, there is absolutely no whisper in the complaint as to how they were arrayed as accused. They were not in charge of and responsible to the company for the conduct of the business of the company and therefore, the proceedings against them has to be quashed. 2. The learned counsel for the petitioners has drawn the attention of the court to the complaint, where it is seen mentioned that A1, who was described ## **Crl.M.C. No. 831 of 2005 -: 2 :-** as the General Manager of A4 company was in charge of the business of the hotel at that time and that A1 had also showed the PFA license to the Food Inspector. No statement was made in the complaint as to what was the role of the petitioners who were arrayed as A2 and A3 in that complaint. A2 is stated to be the Managing Director and A3 is stated to be the Chairman of A4 company. The learned counsel has also pointed out that one Raveendran was nominated by the company as provided under Section 17(1) of PFA Act. Therefore, in view of what is contained in Section 17(2) of the Act, that nominee can be proceeded against but the petition filed by that nominee was rejected by the learned Magistrate. 3. Be that as it may, the question is whether there are prima facie materials to proceed against the petitioners who are stated to be the Managing Director ## **Crl.M.C. No. 831 of 2005 -: 3 :-** and Chairman of the company. The learned counsel has relied upon the decision of the Apex court in **Municipal Corporation of Delhi vs. Ram Kishan Rohtagi and** **others** (1983) 1 Supreme Court Cases 1, where the only point which arose for consideration in that case was whether the Managing Director as also other respondents 1 to 5 therein committed any offence. There it was held: “The only point on which the controversy centres is as to whether or not on the allegations, the Manager as also the other respondents 1 to 5 committed any offence. The main caluse of the complaint which is the subject-matter of the dispute is Clause 5 which may be extracted thus: That accused 3 is the Manager, of accused 2 and accused 4 to 7 are the Directors of accused 2 and as such they were incharge of and responsible for the conduct of business of accused 2 at the time of sampling.” 4. It is pointed out that in that case there were no allegations showing the involvement or complicity of those accused. But here there is no absolutely allegation that A2 and A3, the petitioners herein were in charge of and responsible to the company for the ## **Crl.M.C. No. 831 of 2005 -: 4 :-** conduct of the business of the company. Therefore, in view of the total absence of any such allegation how can they be proceeded against is the pertinent question posed by the learned counsel. The decision in **State of Haryana Vs. Brij Lal Mittal and others** (1998) 5 Supreme Court Cases 343 has also been cited by the learned counsel. Though that decision was renderred in a case filed under the provisions of the Drugs and Cosmetics Act., Section 34 of that Act which is found to be in pari materia followed the decision in **Municipal Corporation** cited supra and held thus: “It is thus seen that the vicarious liability of a person for being prosecuted for an offence committed under the Act by a company arises if at the material time he was in charge of and was also responsible to the company for the conduct of its business. Simply because a person is a director of the company it does not necessarily mean that he fulfils both the above requirements so as to make him liable. Conversely, ## **Crl.M.C. No. 831 of 2005 -: 5 :-** without being a director a person can be in charge of and responsible to the company for the conduct of its business. From the complaint in question we, however, find that except a bald statement that the respondents were directors of the manufacurers, there is no other allegation to indicate, even prima facie, that they were in charge of the company and also responsible to the company for the conduct of its business.” Therefore, in view of the fact that there is absolutely no allegation in Annexure – A complaint, the proceedings against these petitioners has to be quashed. Whether Annexure – C order also has to be reconsidered or not shall be considered by the learned Magistrate after hearing the complainant, the Food Inspector also. 5. In the light of what have been stated above, the complaint against these petitioners cannot be sustained and hence the proceedings against them will stand **Crl.M.C. No. 831 of 2005 -: 6 :-** quashed. But it is made clear that this order will not preclude the trial court from exercising its discretion if it is fully satisfied that a case for taking cognizance against them has been made out on the evidence that may be led before it. This Criminal M.C. is allowed as above. ## **N.K. BALAKRISHNAN, JUDGE** smvd