Rajendra Saxena, J.:— This petition filed under section 482 Cr. P.C has been preferred against the order dated 22.1.1993 passed by the learned Chief Judicial Magistrate, Jodhpur in Criminal Original case No. 56/88, whereby she dismissed petitioner's application filed under section 245(2) Cr. P.C on the ground that the same was premature.

2. Briefly the relevant facts are that on 16.5.1988 the Food Inspector, Jodhpur purchased Quality Ice Cream from one Jagdish Chandra Gupta of Chandra Enterprises, Jodhpur, that ice cream was divided into three samples, which were duly sealed. A sample thereof was sent to the Public Analyst, Jodhpur, who by his report dated 1.6.1988 opined that the said sample did not conform to the prescribed standard under the Prevention of Food Adulteration Rules, 1955 (in short Rules) and was, therefore, adulterated. It is alleged that Jagdish Chandra informed the Food Inspector that Chandra Enterprises, Jodhpur was the distributor of the Kwality Ice Creams Company, Jaipur and that he had purchased the said Ice Cream from Shri R.B Mathur, the Distribution Manager of Kwality Ice Cream. Shri R.B Mathur, in his turn informed the Food Inspector that the Ice Cream in question was manufactured by Kwality Ice Cream Company, New Delhi. The Food Inspector after procuring the requisite sanction under section 20 of the Prevention of Food Adulteration Act, 1954 (in short the Act) filed a criminal complaint dated 22.7.1988 against Jagdish Chandra Gupta of Chandra Enterprises, Shri R.B Mathur, Distribution Manager, Kwality Ice Cream Company, Jaipur and petitioner P.L Lamba, Managing Director, Kwality Ice Cream Company Food Products (P.) Ltd., New Delhi for the offence under section 7/16 of the Act.

3. Accused Jagdish Chand and R.B Mathur put their appearance before the learned trial Magistrate and on their request the second sample was sent under section 13(2) of the Act for chemical analysis to the Public Analyst Central Food Laboratory, Calcutta, who by his report dated 27.11.89 opened that the said sample was adulterated.

4. Bailable warrants were issued to ensure the attendance of the petitioner, who through his Advocate put his appearance and filed an application dated 4.6.1991 under section 245(2) Cr. P.C alleging that the complaint filed by the Food Inspector did neither disclose that he was Incharge and responsible for the conduct of the business of the company of the time of the commission of the alleged offence nor there was any averment therein to show any act committed by him from which reasonable inference could be drawn that he was vicariously liable. He also asserted that there was a valid nomination made in favour of Shri Rajni Kant Sharma, Dairy Technologist of Kwality Ice Cream Company, B-12 Lawrence Road, New Delhi by the Company in pursuance to its resolution dated 5.9.1985 to be the Incharge of, and responsible to, the said Company for the conduct of its business under Rule 12-B of the Rules, which was duly accepted under section 17(2) of the Act by the said Rajni Kant Sharma and acknowledged by the Local (Health) Authority namely the Joint Director, Prevention of Food Adulteration, Delhi Administration, Delhi. The petitioner also filed a copy of the said nomination. The petitioner, therefore, prayed that proceedings against him be dropped and he be discharged. The learned trial Magistrate by her impugned order dismissed the said application. Hence this petition.

5. I have heard Shri P.N Mohanani, the learned counsel for the petitioner and Shri S.M Singhvi, the learned Public Prosecutor at length and carefully perused the record of the lower court.

6. It has been vehemently canvassed by Shri Mohanani that the criminal complaint neither discloses any offence against the petitioner nor there is any averment nor any evidence from which reasonable inference could be drawn that he was incharge of, and responsible to the Company for conduct of its business and as such was vicariously liable. He has asserted that ex facie from the contents of the criminal complaint even prima facie no case is made out against the petitioner and that continuation of the proceedings against him is tantamount to abuse of the process of the court and, therefore, the proceedings qua the petitioner be dropped.

7. On the other hand Shri S.M Singhvi, the learned Public Prosecutor has claimed that keeping in view the provisions of Section 17(1)(b) of the Act, the petitioner, being the Managing Director of the Company is liable to be prosecuted for the offence under Section 7/16 of the Act and that the impugned order does not warrant any interference.

8. I have bestowed my anxious consideration to the rival submissions. A careful and critical scanning of the criminal complaint filed by the Food Inspector reveals that the petitioner has been, arrayed as accused No. 3 and shown as Managing Director of the Kwality Ice Cream Company Food Products (P.) Ltd., New Delhi. In Para No. 3 of the complaint, it has been averred that Kwality Ice Cream Company Jaipur vide its letter No. KK/Manager/87-88 dated 29.6.88 has informed that Kwality Ice Cream Company Food Products (P.) Ltd., B-12, Lawrence Road, New Delhi is the producer of the “Kaju Kishmish Kwality Ice Cream”. There is no other averment against the petitioner in the criminal complaint or in any document appended thereto to indicate that he was incharge of, and was responsible to, the Company for the conduct of its business or that the alleged offence was committed with his knowledge or that he did not exercise his due indulgence to prevent the commission of such an offence. It has also not been pleaded in the complaint that the alleged offence was committed with the consent or connivance of the petitioner, or was attributable to, any neglect on his part.

9. In view of the law laid down by the Apex Court in Smt. Nagawwa v. Verrappa Shivalingappa Konjalgi (1), it is no longer res integra that where the allegations made in the complaint taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence, which is alleged against the accused, then the High Court acting under the provisions of section 482 Cr. P.C in its inherent power should quash the criminal proceedings against such an accused.

10. A similar view has been taken in Sharda Prasad Sinha v. State of Bihar (2), wherein it has been reiterated that where the allegations set out in the complaint or in a charge-sheet do not constitute any offence, it is competent to the High Court exercising its inherent jurisdiction under section 482 Cr. P.C to quash the order passed by the Magistrate taking cognizance of the offence.

11. Section 17 of the Act runs as under:

“17. Offence by companies— (1) Where an offence under this Act has been committed by a company—

(a)(i) the person, if any, who has been nominated under sub-section (2) to be in charge of, and responsible to, the company for the conduct of the business of the company (hereinafter in this section referred to as the person responsible), or

(ii) Where no person has been so nominated, 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; and

(b) the 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 sub-section shall reader any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence.

(2) Any company may, by order in writing, authorise any of its Directors or Managers (such Manager being employed mainly in a managerial or supervisory capacity) to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission by the company of any offence under this Act and may give notice to the Local (Health) Authority, in such form and in such manner as may be prescribed, that it has nominated such Director or Manager as the person responsible, along with the written consent of such Director or Manager for being so nominated.

Explanation — Where a company has different establishment, or branches or different units in any establishment or branch, different persons may be nominated under this sub-section in relation to different establishment, or branches or units and the person nominated in relation to any establishment, branch or unit shall be deemed to be the person responsible in respect of such establishment, branch or unit.

(3) The person nominated under sub-section (2) shall, until—

(i) further notice cancelling such nomination is received from the company by the Local (Health) Authority; or

(ii) he ceases to be a Director or, as the case may be, Manager of the company; or

(iii) he makes a request in writing to the Local (Health) Authority, under intimation to the company, to cancel the nomination which request shall be complied with by the Local (Health) Authority,

Whichever is the earliest, continue to be the person responsible; Provided that where such person ceases to be a director or, as the case may be, Manager of the company, he shall intimate the fact of such cesser to the Local (Health) Authority;

Provided further that where such person makes a request under clause (iii), the Local (Health) Authority shall not cancel such nomination with effect from a date earlier than the date on which the request is made.

(4) Notwithstanding anything contained in the foregoing sub-sections, where an 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 on the part of, any Director, Manager, Secretary or other officer of the company, not being a person nominated under sub-section (2) 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 purposes of this Section—

(a) “company” means anybody corporate and includes a firm or other association of individuals;

(b) “director”, in relation to a firm, means a partner in the firm; and

(c) “manager” in relation to a company engaged in hotel industry, includes a person-in charge of the catering department or any hotel managed or run by it.”

12. Hence it is abundantly apparent that if the company has nominated under sub-section (2) of Section 17 of the Act, a person to be incharge of, and responsible to, the company for the conduct of the business of the Company then such person only shall be held responsible. If no person has been so nominated, every person, who at the time the offence was committed, was incharge of, and was responsible to, the Company for the conduct of its business and the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Even in such cases, the proviso to sub-section (1) offers a defence and the accused can prove his innocence by showing that the offence was committed without his knowledge and despite the Exercise of due indulgence to prevent it. Sub-section (4) of Section 17 of the Act, which begins with a non obstante clause next provides that where an offence under the Act has been committed by a company and it is proved that the offence has been with the consent and connivance or its attributable to, any neglect on the part of any Director, Manager, Secretary or other officers 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.

13. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi (3), the Food Inspector purchased a sample of “Morton Toffees”, which on chemical analysis did not conform to the standard prescribed for toffees. The toffees were manufactured by Upper Ganges Sugar Mills. The complaint was filed against respondent Ram Kishan Rohatgi, Manager of the company and respondents No. 2 to 5, who were Directors of the Company and the Company. The Metropolitan Magistrate summoned the respondents for being tried for the offence under Section 7/16 of the Act. In the complaint, so far as the Directors were concerned, there was not even a whisper nor a shred of evidence nor any thing to show apart from the presumption drawn by the complainant that there was any act committed by the Directors from which a reasonable inference could be drawn that they could also be vicariously liable. In such circumstances, the Apex Court held that no case was made out exfacie on the allegations made in the complaint and that the proceedings against them were rightly quashed by the High Court.

14. In P.R Neelkantham v. State Of Rajasthan (4), the Food Inspector purchased tea from the vendor, which on chemical analysis was found to be adulterated. The vendor disclosed that he had purchased the tea from the agent of the Brooke Bond India Ltd. The Food Inspector presented a complaint before the C.J.M against the said vendor, Brooke Bond India Ltd. and its Directors. Relying on Ram Kishan Rohatgi's case (supra) this Court held that in the absence of any allegation in the complaint that the particular persons were in charge of and were responsible to the company for the conduct of the business of the company, the deeming provision contained in S. 17(1) of the Act could not be attracted and such persons could not be prosecuted and punished in respect of offences under the Act. It was further held that they could not be deemed to be guilty of the offence alleged and that section 20-A would not help to prosecution since the case had not reached the trial stage and the proceedings against the Directors were quashed and set aside. It was, however, directed that it would be open for the prosecution to proceed against Brooke Bond India Ltd.

15. In R. Banerjree v. H.D Dubey (5), nomination under section 17(2) made by the company was not acted upon on the ground that it was invalid and Directors were prosecuted. There was no allegation in the complaint that the offence was committed with the consent etc. of the Directors. It was held that provisions of section 17(4) of the Act were not attracted and that the prosecution of Directors was unjustified. However, the matter was remanded to the Magistrate for determination of validity of nomination as a preliminary issue.

16. Similar are the facts of the case on hand, because in the complaint it has not even been averred that the petitioner was in charge of, and responsible to, the company for conduct of its business. The complaint also does not disclose any offence against the petitioner. On the other hand the petitioner has filed the copy of Form No. VIII prescribed under Rule 12-B of the Prevention of Food Adulteration Rules, nominating Shri Rajnikant Sharma, Dairy Technologist of Kwality Ice Cream Company, New Delhi in pursuance to company's resolution passed in their meeting held on 5.9.1985, to be incharge of, and responsible to, the said company, for the conduct of the business of the said company. This nomination has duly been accepted by the said Shri Rajnikant Sharma on 5.9.1985 and the Local (Health) Authority namely the Joint Director, Prevention of Food Adulteration, Delhi Administration, Delhi had also acknowledged the receipt of the said nomination. This shows that the Food Inspector did not take care to make necessary inquiries from Kwality Ice Cream Company Food Products (P.) Ltd., New Delhi to find out whether any nomination was made by the said company under section 17(1)(a) of the Act? He also did not make any effort to ascertain as to whether the petitioner was in charge of, and responsible to, the Company for conduct of its business. The criminal complaint is, therefore, quite vague and incomplete in fixing the vicarious liability against the petitioner.

17. In the instant case, the prosecution has even not cared to file any reply to petitioner's application dated 4.6.1991, nor any objection has been raised about the validity of the nomination under section 17(1)(a) of the Act in favour of Shri Rajnikant Sharma. Therefore, it is manifestly clear that the prosecution has not challenged the validity of the said nomination. Therefore, it is not necessary to remand the matter for determination of validity of nomination.

18. Hence for the reasons mentioned above, I am of the considered opinion that it is a fit case, wherein this Court should invoke its inherent powers under section 482 Cr. P.C and quash the proceedings against petitioner P.L Lamba.

19. The net result of the above discussion is that this petition is allowed and proceedings against petitioner P.L Lamba, the Managing Director of Kwality Ice Cream Company Food Products (P.) Ltd., New Delhi in the Criminal Original Case No. 56/88 pending in the court of learned Chief Judicial Magistrate, Jodhpur are hereby quashed. However, it is made clear that the prosecution against Kwality Ice Cream Company Food Products (P.) Ltd., New Delhi shall continue. The prosecution will be free to implead Shri Rajnikant Sharma the Dairy Technologist in whose favour the said Company has filed the nomination under Rule 12-B of the Prevention of Food Adulteration Rules, 1954 and which has been duly accepted by the said nominee and duly acknowledged by the Local (Health) Authority in accordance with Law.