Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
WEDNESDAY, THE 19TH DAY OF OCTOBER 2022 / 27TH ASWINA, 1944 CRL.MC NO. 7017 OF 2022 AGAINST THE ORDER/JUDGMENTCC 126/2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,NADAPURAM PETITIONER/S:
1 DAMODARAN T.P AGED 63 YEARS S/O. KANARAN, THAZHEPOOLATTATHIL, CHALAPURAM POST, NADAPURAM, KOZHIKODE DISTRICT, PIN - 673504 2 SHYNI P.K AGED 43 YEARS D/O. VASUDEVAN, PARAL THAZHEKUNIYIL, PURAMERI P.O, VATAKARA, KOZHIKODE DISTRICT , PIN - 673503 3 RAGI CHANDRIKA AGED 45 YEARS D/O. KUNHIKANNAN, PILACHERI HOUSE, PURAMERI P.O, VATAKARA, KOZHIKODE DISTRICT , PIN - 673503 4 REKHA E.K AGED 44 YEARS D/O. BALAN T.P, KATTIL HOUSE, EDACHERI P.O,VATAKARA, KOZHIKODE DISTRICT , PIN - 673502 5 BALAN K.K AGED 69 YEARS S/O. UNNICHATHAN, KAKKANKANDI(H), ATHOLI P.O, KOYILANDY, KOZHIKODE DISTRICT , PIN - 673315 6 SHIJI E.P AGED 39 YEARS D/O. KRISHNAN, VALAPPIL (H), MUTHUVADATHOOR POST, VATAKARA, KOZHIKODE DISTRICT , PIN - 673503
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7 SREENA K.K AGED 45 YEARS D/O.BHASKARAN K.P, NILAA HOUSE, EDACHERI P.O, VATAKARA, KOZHIKODE DISTRICT , PIN - 673503 BY ADVS.
K.B.ARUNKUMAR POOJA K.S.
RESPONDENT/S:
1 STATE OF KERALA 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 FOOD SAFETY OFFICER VATAKARA CIRCLE (IN CHARGE OF KUTTIADY CIRCLE), OFFICE OF THE FOOD SAFETY OFFICER, PUTHUPPANAM P.O, KOZHIKODE DISTRICT , PIN - 673105 BY ADVS.
SRI. GRACIOUS KURIAKOSE, ADGP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.10.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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ORDER Dated this the 19th day of October, 2022 The petitioners are accused Nos.2 to 8 in C.C. No.126/2020 on the files of the Judicial First Class Magistrate Court, Nadapuram, which was registered against them and the 1st accused for the offences punishable under Sections 59 and 3(1) (zz)(v) and (vii) read with 3.1 zx of Food Safety and Standards Act, 2006 (hereinafter referred to as Act, 2006).
2.
The aforesaid proceedings were initiated based on the Annexure-1 complaint submitted by the 2nd respondent herein.
The allegation against the petitioner is that on 06.03.2019 at about 3 p.m., the 2nd respondent, the Food Safety Officer, Vatakara Circle, reached the premises of M/s.Changaeez Super Market, a partnership firm in which the 1st accused was the Managing partner, and the other accused were the partners, and purchased 2 kgs. of jaggery from a sack out of 12 Kg. which was kept for sale. Upon examination of the same, it was found that it
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does not conform to the standards prescribed for jaggery falling under regulation 2.8.4.1 of Food Safety and Standards (Food Products Standards & Food Additives) Regulation, 2011 and therefore, it is substandard and unsafe as contemplated under Section 3.1(zx) of Act, 2006. Thereafter, necessary sanction for prosecution was obtained and accordingly, Annexure-1 complaint was submitted before the Judicial First Class Magistrate Court, Nadapuram, against accused Nos.1 to 8, including the petitioners herein. Cognizance was taken by the Judicial First Class Magistrate Court as C.C. No.126/2020. While the prosecution was pending, the 1st accused passed away, and the proceedings against him now stand abated. The petitioners herein have approached this Court to quash all further proceedings pursuant to Annexure-1.
3.
Heard Sri. K.B. Arun Kumar, the learned counsel appearing for the petitioners, Sri. Gracious Kuriakose, the learned Additional Director General of Prosecution, appearing for the respondents.
4.
The contention put forward by the learned counsel for the petitioners is that the Annexure-1 complaint does not contain
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any specific averments indicating the role of the petitioners herein in the management of the firm's business which is being proceeded against. It is pointed out that, admittedly, it was a partnership firm, and he relied on the contents of the partnership deed, which is produced as Annexure 2 partnership wherein it is mentioned that the day to day affairs of the same was vested upon the 1st accused Managing Partner.
5.
On the other hand, the learned Additional Director General of Prosecution brought the attention of this Court to the statement filed on behalf of the respondents wherein the averments contained in the Crl.M.C. were denied. It is specifically pointed out that, as per clause No.9 of the Partnership Deed, it is agreed by and between the partners that all the parties to the Partnership Deed shall actively devote their whole time and attention to the conduct of the business and shall be entitled to remuneration. It is also mentioned that all the partners shall be working partners. By relying on the same, it is contended that the said provision indicates that all the partners had a role in conducting the business of the firm, and therefore, they are liable to be proceeded against. Thus, the learned ADGP seeks for
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dismissal of the Crl.M.C.
6.
I have gone through the records and heard the contentions raised from either side. A careful scrutiny of the averments made in Annexure-1 complaint, would reveal that, apart from the fact that the petitioners herein were arraigned as accused Nos.2 to 8, absolutely no averments are seen made with respect to the role of the said persons, in the matter of day to day affairs of the said Company. Section 66 of the Act, 2006 deals with the offences against the Companies. The aforesaid provision reads as follows:
“66. Offences by companies:- (1) Where an offence under this Act which 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:
Provided that where a company has different establishments or branches or different units in any establishment or branch, the concerned Head or the person in-charge of such establishment, branch, unit nominated by the company as responsible for food safety shall be liable for contravention in respect of such establishment, branch or unit:
Provided further that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub- section(1), where an offence under this Act has been
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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 also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation – For the purpose of this section, – (a) “company” means any body corporate and includes a firm or other association of individuals; and (b) “director” in relation to a firm, means a partner in the firm.” 7.
It is evident from the said provision that, the prosecution is not contemplated in an automatical manner against all the persons who are the Directors or partners of the Company or firm. The prosecution is contemplated only against those persons, who, at the time when the offence was committed, were in charge and responsible to the Company of firm for the conduct of the business of the same. Therefore, since the stipulation contained in Section 66 is only in respect of prosecution against only those persons who were in charge and were responsible for the conduct of the business of the Company/partnership firm at the time of the commission of the Crime, it was obligatory on the part of the prosecuting agency to make necessary averments in the complaint specifying the specific role of each accused. In this case, the learned counsel for the petitioners relies on Annexure 2
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partnership deed, in which clause 7 deals with the Management of the firm. It is clearly mentioned therein that the 1st accused shall be Managing Director, and he shall manage the business of the firm on behalf of the other partners. Therefore, in the absence of specific averments in the complaint with respect to the role of the petitioners herein, and in the light of recitals in Annexure 2 partnership deed, wherein the management of the business was shown as the responsibility of the 1st accused, the petitioners cannot be implicated as accused persons. In other words, the position that the petitioners are holding in the partnership firm by itself cannot be the reason for initiating the prosecution against them, unless there are averments pointing out their respective roles in managing the affairs of the firm and the materials supporting the said contentions.
8.
It is a well settled position of law that the principles of vicarious liability are unknown to criminal law unless the same is specifically contemplated as per statutory provisions. As far as the provisions under the Food Safety Act, 2006 is concerned, Section 66 explicitly states that the prosecution can be lodged only against persons in charge of or responsible for the day-to-
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day affairs of the Company. Therefore, to be an accused, the partner of the firm has to be shown as a person having active participation in the management of the firm.
9.
It is true that one of the contentions raised by the learned ADGP is clause 9 of the Partnership Deed, which confers liability upon all the partners as well. However, I am of the view that the recitals in the Partnership Deed alone are not sufficient to establish the same. Since the burden to show that the person who is accused of the crime was responsible for the affairs of the Company or firm, is on the complainant, it was the obligation of the complainant to establish the same by specifically making necessary averments in this regard in the complaint so as to enable them to adduce evidence to substantiate the same at the time of trial. Since no such specific averments are not there, the question of adducing evidence in respect of the same does not arise in this case. From the above, the only irresistible conclusion possible is that the proceedings against the petitioner are clear abuse of the process of law, which warrant interference by this court under section 482 of Cr.P.C.
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In such circumstances, this Crl.M.C. is allowed and all further proceedings pursuant to Annexure-1 and proceedings in C.C. No.126/2020 on the file of the Judicial First Class Magistrate Court, Nadapuram, as against the petitioners herein are hereby quashed.
Sd/- ZIYAD RAHMAN A.A.
JUDGE ncd
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APPENDIX OF CRL.MC 7017/2022 PETITIONER ANNEXURES Annexure1 ACCUSED COPY OF THE COMPLAINT ALONG WITH DOCUMENTS IN C.C NO. 126/2020 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, NADAPURAM Annexure2 THE TRUE COPY OF THE PARTNERSHIP DEED DATED 10.07.2018 Annexure3 THE TRUE COPY OF THE GST REGISTRATION CERTIFICATE DATED 16.10.2018 Annexure4 TRUE COPY OF THE DEATH CERTIFICATE OF THE 1ST ACCUSED