Hindustan Coca-Cola Beverages Pvt. Ltd. v. State of Kerala & Inspector, Legal Metrology, Nedumangad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 14TH DAY OF MARCH 2014/23RD PHALGUNA, 1935** **Crl.MC.No. 3766 of 2012 ()** **--------------------------ST.NO. 2523/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, NEDUMANGAD ------------------** **PETITIONERS / ACCUSED 1 TO 7 :** **---------------------------------------------------** ## **1. THE MANAGING DIRECTOR (MANUFACTURER)** **HINDUSTAN COCA-COLA BEVERAGES PVT.LTD. SY.NO.127 TO 131, KAPUGUNNERI VILLAGE SREE KALAHASTHY MANDAL, CHITTUR ANDHRA PRADESH-517640.** ## **2. M.V.JAGANNATH** **GENERAL MANAGER FOR CHITTUR AREA HINDUSTAN COCA-COLA BEVERAGES PVT. LTD. SY.NO.127 TO 131, KAPUGUNNERI VILLAGE SREE KALAHASTHY MANDAL, CHITTUR ANDHRA PRADESH-517640.** ## **3. THIRUMALAI KRISHNA KUMAR** **CHIEF EXECUTIVE OFFICER HINDUSTAN COCA-COLA BEVERAGES PVT.LTD. SY.NO.127TO 131, KAPUGUNNERI VILLAGE SREE KALAHASTHY MANDAL, CHITTUR ANDHRA PRADESH-517640.** ## **4. SANJEEV GUPTA** **PRESIDENT, HINDUSTAN COCA-COLA BEVERAGES PVT.LTD. SY.NO.127 TO 131, KAPUGUNNERI VILLAGE SREE KALAHASTHY MANDAL, CHITTUR ANDHRA PRADESH-517640.** ## **5. M/S. HINDUSTAN COCA-COLA BEVERAGES PVT.LTD.,** - **SY.NO.127 TO 131, KAPUGUNNERI VILLAGE SREE KALAHASTHY MANDAL, CHITTUR ANDHRA PRADESH-517640 REPRESENTED BY THE MANAGING DIRECTOR (MANUFACTURER).** **6. G.MOHANKUMAR (DISTRIBUTOR) LAKSHMI AGENCIES, A.P.VIII/167, NAGACHERI ANAD, NEDUMANGAD-695 542.** **7. M/S.LAKSHMI AGENCIES** - **A.P.VIII/167, NAGACHERI, ANAD NEDUMANGAD-695542,** - **REPRESENTED BY G.MOHANKUMAR.** **BY SENIOR ADVOCATE SRI.M.K.DAMODARAN BY ADV. SRI.MADHU RADHAKRISHNAN** **...2/-** **Crl.MC.No. 3766 of 2012 () -2-** ## **RESPONDENTS/STATE & COMPLAINANT :** **-------------------------------------------------------------** ## **1. STATE OF KERALA** - **REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA.** ## **2. INSPECTOR** - **LEGAL METROLOGY, NEDUMANGAD.** **R1 & R2 BY PUBLIC PROSECUTOR SRI. REJI JOSEPH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Mn** **...3/-** **Crl.MC.No. 3766 of 2012 ()** ## **APPENDIX** ## **PETITIONERS' ANNEXURES :** **ANNEXURE A1 : COPY OF SHOW CAUSE NOTICE DATED 15-6-2011 ISSUED BY THE 2ND RESPONDENT TO THE 1ST PETITIONER. ANNEXURE A1(a) COPY OF SHOW CAUSE NOTICE DATED 15-6-2011 ISSUED BY THE 2ND RESPONDENT TO THE 6TH PETITIONER.** **ANNEXURE A2 COPY OF THE REPLY TO THE SHOW CAUSE NOTICE SENT BY REGISTERED POST/BY HAND TO THE RESPONDENT DATED ANNEXURE A3 COMPLAINT FILED BY THE 2ND RESPONDENT.** **ANNEXURE A4 COPY OF THE SAMPLE OF THE ORIGINAL LABEL USED ON THE 600 ML “MAAZA” MANGO DRINK.** ## **RESPONDENT'S ANNEXURES : NIL** **//TRUE COPY//** **P.A. TO JUDGE** **Mn** ## **P.D. RAJAN, J.** ------------------------------------------Crl.M.C. No.3766 of 2012 ---------------------------------------------Dated this the 14[th] day of March, 2014 ## **ORDER** This petition is filed u/s.482 Cr.P.C. to quash Annexure-A3 complaint in S.T.No.2523/2011 on the file of Judicial First Class Magistrate Court-I, Nedumangad, which was filed u/s. 39 of the Standards of Weights and Measures Act 1976 and Section 33 of the Standards of Weights and Measures (Enforcement) Act 1985 r/w Rule 6(IA) of the Standards of Weights and Measures (packed Commodities) Rules 1977, by invoking the inherent jurisdiction. The petitioners are accused 1 to 7 in the above case, which was filed by the Inspector, Legal Metrology Department, Thiruvananthapuram. They contended that the person in charge of and responsible for conducting the business of the Company was not arrayed as an accused, which is a Crl.M.C.No.31766/12 2 mandatory provision for prosecuting the Company and in violation of such direction, if trial is proceeded, it amounts to a mere abuse of process of Court. 2. The allegation of the 2[nd] respondent before the Judicial First Class Magistrate Court-I, Nedumangad was that on 4.3.2011 at 1.10 p.m, he inspected the trade premises of Vijaya Bakery, Parandod Junction, Aryanad Panchayat, Nedumangad and detected 600 ml mango drink 'maaza', which did not contain the mandatory declaration of 'name, address, telephone number, e-mail address of the person', who can be or the office which can be contacted in case of consumer complaint as specified in Rule 6(1) 1A of the Rules. According to the 2[nd] respondent, manufacturing, packing, selling or causing to pack, causing to distribute, causing to sell, distribute, delivering, offering, exposing and possessing for sale, such packaged commodities do not bear the mandatory declaration constitutes an offence u/s.39 of the Act 1976. Crl.M.C.No.31766/12 3 The 2[nd] respondent issued a show cause notice on 15.6.2011 to the 1[st] petitioner and 6[th] petitioner and therefore lodged Annexure-A3 complaint before the Judicial First Class Magistrate Court-I, Nedumangad. In the circumstances, the petitioners approached this Court with the above Crl.M.C. 3. The learned counsel appearing for the petitioners contended that Annexure-A3 is frivolous and vexatious and if it is continued, it amounts to abuse of process of Court. The person in charge of and responsible for the day-to-day business of the company was not arrayed as accused in Annexure-A3. Here, petitioners 1 to 4, who are office bearers of the Company are not liable for the day-to-day business of the Company. Hence, prosecution against them is a mere abuse of process of Court. **4** . The learned Public Prosecutor strongly opposed the argument advanced by the learned counsel for the Crl.M.C.No.31766/12 4 petitioners and contended that prima facie case is made out against the petitioners in Annexure-A3. The company has not furnished details of the persons, who are in charge of and responsible for the day-to-day business of the Company. In the absence of such indication in the reply notice, the Managing Director and the President are responsible for the company's day-to-day business. Anneuxre-A4 is not admissible at this stage. 5. Now the short question that arises for consideration is whether this is a fit case to invoke the inherent jurisdiction u/s.482 Cr.P.C. The inherent powers of the High Court contemplated u/s 482 Cr.P.C. has to be exercised only for the three purposes mentioned in the Section. This power cannot be invoked naturally in a matter where it is covered by a specific provision of the code. Therefore it means that if the matter in question is not covered by any provision of the code, it comes into operation, for the three purposes mentioned in the section Crl.M.C.No.31766/12 5 i.e. to make such orders necessary to “give effect to any order” under this code or to prevent “abuse of the process” of any court or to secure “the ends of justice”. It is the mandatory principle that while exercising the rule u/s.482 Cr.P.C, the High Court cannot ordinarily conduct an enquiry whether the evidence in question is reliable or not or whether it will cause any reasonable apprehension for accusation or not. That is the function of the trial magistrate. Apex Court in _**Monica Kumar**_ v. _**State of Uttar Pradesh**_ [(2208) 8 SCC 781], held that inherent jurisdiction has to be exercised only sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. 6. According to Section 62 of the Standards of Weights and Measures (Enforcement) Act 1985, if a person committing an offence under this Act is a company, every person who, at the time the offence was committed, was in charge of and was responsible to the company Crl.M.C.No.31766/12 6 ## shall be deemed to be guilty of the offence. Section 62 of ## the Act extracted as follows: “62. Offences by companies.- (1) If the person committing an offence under this Act is 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 company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Provided that nothing contained in this subsection shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in subsection (1), where any offence under this 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 or the part of, any director, manager, secretary or other officer of the company, such director, manager secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.” A close scrutiny of the above Section shows that if an offence is committed by a Company, every person, who was in charge of and was responsible for the conduct of the business of the company shall be deemed to be guilty Crl.M.C.No.31766/12 7 of the offence and shall be liable to be proceeded against and punished. The petitioner contended that the petitioners 1 to 4 are the Managing Director, General Manager, Chief Executive Officer and President and the person in charge of and responsible for the day-to-day business of the company is a different person. ## 7. Apex Court in _**S.M.S. Pharmaceutical Ltd.**_ v. _**Neeta**_ ## _**Bhatta**_ [(2005) 8 SCC 89] held as follows: “19. In view of the above discussion, our answers to the questions posed in the reference are as under: (a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied. (b) The answer to the question posed in sub-para (b) has to be in the negative. Merely being a Director of a company is not sufficient to make the person liable under Section 141 of the Act. A Director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct the business of the company at the relevant time. This has to be averred as a fact as Crl.M.C.No.31766/12 8 there is no deemed liability of a director in such cases. (c) The answer to Question © has to be in the affirmative. The question notes that the Managing Director or Joint Managing Director would be admittedly in charge of the company and responsible to the company for the conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as Managing Director or Joint Managing Director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub-section (2) of Section 141.” 8. Therefore, from the above legal principle, it is found that no materials are produced before the trial court to show that the petitioners 1 to 4 are the person in charge of and responsible for the Company's day-to-day business. In the absence of such pleading, the proceedings against the office bearers of the company is not fair. The petitioners 1 to 4 happened to be the officers of the Company and that itself does not create any criminal liability upon them. If that be the position, this is a fit case to invoke the inherent jurisdiction u/s.482 Cr.P.C. Crl.M.C.No.31766/12 9 to quash the proceedings against petitioners 1 to 4 and I do so. 9. However, the 2[nd] respondent can proceed against proper person in charge of and responsible for the day-to-day business of the Company in accordance with law and the prosecution against accused 5 to 7 will continue. They are at liberty to take all defence in support of their contention in the trial Court. Crl.M.C. is disposed of as above. ## **P.D. RAJAN, JUDGE.** acd Crl.M.C.No.31766/12 10 Crl.M.C.No.31766/12 11