Divisional Chief Executive, Tobacco Division, ITC Ltd. v. State of Kerala and Public Prosecutor; S.T. No. 5834/2016 (Judicial First Class Magistrate, Wadakkancherry)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 24TH DAY OF OCTOBER 2019 / 2ND KARTHIKA, 1941** ## **Crl.MC.No.1668 OF 2019(G)** **AGAINST THE ST 5834/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,VADAKKANCHERRY** ## **PETITIONER/3RD ACCUSED:** **THE DIVISIONAL CHIEF EXECUTIVE TOBACCO DIVISION, W/S. ITC LTD, VIRGINA HOUSE, J.L. NEHRU ROAD, KOLKATHA - 700 071** **BY ADVS. SRI.V.B.UNNIRAJ SMT.R.S.GEETHA SRI.ENOCH DAVID SIMON JOEL SMT.K.SEEMA SMT.P.ANITHA** ## **RESPONDENTS/STATE & COMPLAINANT:** **1 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **2 THE MEDICAL OFFICER IN CHARGE PRIMARY HEALTH CENTRE, KODANGODE, THRISSUR DISTRICT, P.O. VELLARAKKAD - 680 584** **SRI M K PUSHPALATHA-PP, SRI BECHU KURIAN THOMAS - SR ADV** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22.10.2019, THE COURT ON 24.10.2019 PASSED THE FOLLOWING:** Crl.M.C.No.1668/2019 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.1668 of 2019 --------------------------------------------Dated this the 24[th] day of October, 2019 ## **O R D E R** This petition is filed under Section 482 of the Code of Criminal Procedure, 1973 for quashing the proceedings against the petitioner in the case S.T.No.5834/2016 on the file of the Court of the Judicial First Class Magistrate-I, Wadakkancherry. 2. The petitioner is the third accused in the case. The allegation against him is that he committed an offence punishable under Section 20 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution Act, 2003 (hereinafter referred to as 'the Act'). 3. The case against the petitioner is based on a complaint filed before the Magistrate's Court by the Medical Officer-in-charge, Primary Health Centre, Kadangode. As per the Crl.M.C.No.1668/2019 3 complaint filed by him, when he conducted inspection of the shop of the first accused, it was found that tobacco products manufactured by accused 2 to 5 were stored in the shop. It is alleged that the tobacco products had no proper statutory warning labels on them. 4. The proceedings against the petitioner are sought to be quashed on the ground that the petitioner is shown as an accused in the case not by his name but by his official capacity in a company. It is also stated that the complaint filed, without impleading the company who produced or manufactured the tobacco products as an accused, is not maintainable. 5. Heard Sri. Bechu Kurian Thomas, learned Senior Counsel who appeared for the petitioner and also the learned Public Prosecutor. 6. The offence allegedly committed by the accused in the case is under Section 20 of the Act. Section 20(1) of the Act states that any person who produces or manufactures cigarettes or tobacco products, which do not contain, either on the package or on their label, the specified warning and the nicotine and tar Crl.M.C.No.1668/2019 4 contents, shall be liable for punishment. Section 20(2) of the Act states that any person who sells or distributes cigarettes or tobacco products, which do not contain, either on the package or on their label, the specified warning and the nicotine and tar contents, shall be liable for punishment. 7. Section 26(1) of the Act provides that where an offence under the Act has been committed by a company, every person, who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Section 26(2) of the Act states that, notwithstanding anything contained in subsection (1), where any offence under the Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be proceeded against and punished Crl.M.C.No.1668/2019 5 accordingly. 8. The complaint against the third accused is not maintainable for more than one reason. In the first place, the petitioner, who is the third accused in the case, is described in the complaint as "the Divisional Chief Executive, Tobacco Division, ITC Ltd." The name of the third accused is nowhere mentioned in the complaint. The offence was detected on 13.06.2016. The complaint is dated 29.08.2016. The person holding the post of the divisional chief executive of the company at the time of commission of the alleged offence may not be the person holding that post or office at the time of filing the complaint or at the time of the trial of the case. Only that particular individual, who has allegedly committed the offence, can be prosecuted. The proceedings against the third accused are liable to be quashed on this ground alone. 9. In the second place, the complaint lacks necessary averments to make the third accused liable for an offence committed by the company of which he/she is the Divisional Chief Executive. As per Section 26(1) of the Act, in order to make Crl.M.C.No.1668/2019 6 any person liable for an offence committed by a company, that person should have been, at the time the offence was committed, in charge of, and was responsible to, the company for the conduct of the business of the company. In the instant case, there is no averment in the complaint that the third accused was in charge of, and was responsible to, the company for the conduct of the business of the company, at the time of commission of the offence by the company. There is also no averment in the complaint that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of the third accused. 10. In the third place, the company, which has allegedly committed the offence and of which the third accused is the Divisional Chief Executive, is not arrayed as an accused in the complaint. In **Aneeta Hada v. Godfather Travels and Tours Private Limited : (2012) 5 SCC 661** , the Apex Court has held that unless the company is made an accused, there cannot be a valid prosecution against an officer of it who has got only vicarious liability. Arraigning of the company as an accused is Crl.M.C.No.1668/2019 7 imperative to make the officers of the company liable. True, this decision was rendered by the Apex Court in the context of the provision contained in Section 141 of the Negotiable Instruments Act, 1881. But, the provisions contained in Section 26 of the Act are almost in pari materia with the provisions contained in Section 141 of the Negotiable Instruments Act. Therefore, the dictum laid down in the aforesaid decision squarely applies to the facts of the present case. On this ground also, the proceedings against the petitioner are liable to be quashed. Consequently, the petition is allowed. The proceedings against the petitioner alone in the case S.T.No.5834/2016 on the file of the Court of the Judicial First Class Magistrate-I, Wadakkancherry are hereby quashed. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr Crl.M.C.No.1668/2019 8 ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE COMPLAINT IN S.T. NO. 5834/2016 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT1, WADAKKANCHERY. EXHIBIT P2 THE TRUE COPY OF THE MAHAZAR DATED 13/06/2016 PREPARED BY THE 2ND RESPONDENT** RESPONDENTS' EXHIBITS: NIL TRUE COPY PS TO JUDGE