Holding

When a valid nomination under section 17(2) exists, only the nominated person and the company may be proceeded against unless the offence is shown to have been committed with the consent, connivance or negligence of other officers under section 17(4).

Summary

A food inspector seized samples of orange drink and vanaspati ghee from the godowns of Lipton India Ltd and Hindustan Lever Ltd and, after a public analyst’s report, found them adulterated and mis‑branded. Complaints were filed under sections 7 and 16 read with section 17 of the Prevention of Food Adulteration Act, 1954 against the companies and their directors, managers and other officers. Both companies claimed they had validly nominated a director/manager (H. Dayani and Dr. Nirmal Sen) under section 17(2) via Form VIII, arguing that only the nominated persons could be prosecuted unless the offence was committed with the consent, connivance or negligence of other officers under section 17(4). The Supreme Court held that when a valid nomination exists, prosecution can be limited to the nominated person and the company unless section 17(4) is attracted, and that the complaint did not allege such. Since the validity of the nominations was in dispute, the Court remanded the matter to the trial magistrate to determine whether the nomination forms were received and acknowledged by the competent Local Health Authority. The appeals were allowed and the lower courts’ orders set aside.

Issues considered

Whether a prosecution under section 17(1) of the Prevention of Food Adulteration Act can be launched against directors and managers of a public limited company when the company has made a nomination under section 17(2).
Whether the allegations in the complaints fall within the ambit of section 17(4) requiring consent, connivance or negligence of other officers.
Whether the nominations made by Lipton India Ltd and Hindustan Lever Ltd were validly received and acknowledged by the competent Local (Health) Authority.

Legislation cited

Code of Criminal Procedure, 1973s. 482
Prevention of Food Adulteration Act, 1954s. 16, s. 17, s. 7
Prevention of Food Adulteration Rules, 1955s. Rule 12-B

Subjects

Food adulterationCorporate liabilitySection 17 nominationMis‑brandingPrevention of Food Adulteration ActSection 17(4)Validity of nominationCriminal prosecution of directors

Judgment

R. BANERJEE AND ORS. A
v.
H.D. DUBEY AND ORS ..

MARCH 13, 1992

[AM. AHMADI AND K. RAMASWAMY, JJ.] B

--<, Prevention of Food Adulteration Act, 1954:

Section 17-Prosecution--Launching of-Against Directors/Managers
of Public Limited Companies-Nomination made under sub-section
(2)-Validity of nomination-Prosecution only against the nominated per-
c
..-... "'---
son-Not against others-lmpleading others as co- accused-When
arise~Applicability of sub-section (4).

,1__ The Respondent Food Inspector visited the godown of a company
and lifted samples of orange drink manufactured by the company, as also D
Vanaspati ghee manufactured by the said company as also by another
company. He found that the label atraxed to the oran1~e drink carried the
date of manufacture as June, 1988. Since the date of expiry was stated to
be six months from the date of manufacture he found that the products
was mis-branded or adulterated as six months had already expired on the
E
date of inspection. He forwarded the samples so collected to the public
Analyst. The report of the Public Analyst was to the emict that all the three
__...__ samples were adulterated, as they did not conform to the standard
prescribed by law. The respondent then filed three separate complaints
against the respective companies, as well as the Direc1ors, Managers and
officers of the companies, for the commission of offences punishable under F
Section 7/16 read with section 17 of the Prevention of Food Adulteration
Act, 1954. The appellants' contention that in view of the nominations made
• by the companies, only the persons nominated to be incharge of and
responsible for the conduct of the business could be prosecuted and not
>- the other Directors/Managers/Officers. G
I'-
Having been unsuccessful before the Trial Court as also before the
High Court, the appellants have preferred the present appeals by special
leave.

,.,... Allowing the appeals on the question whether it was permissible to H
221
222 SUPREME COURT REPORTS (1992) 2 S.C.R.

A launch a prosecution under section 17 (1) of the Prevention of Food Adul-
teration Act, 1954 against the Directors and Managers of Public Limited
Companies notwithstanding the nomination made by the companies as
required by section 17 (2) of the Act, this Court,

HELD: 1. It is clear from the scheme of section 17 of the Prevention
B of Food Adulteration Act, 1954 that where a company has committed an
offence under the Act, the person nominated under sub-section (2) to be
in charge of, and responsible to, the company for the conduct of its
business shall be proceeded against unless it is shown that the offence was
committed with the consent/connivance/negligence of any other Director,
c Manager, Secretary or Officer of the Company in which case the said
person can also _be proceeded against and punished for the commission of
the said offence. It is only where no person has been nominated under
sub-section (2) of section 17 that every person, who at the time of the
commission of the offence was in charge of and was responsible to the
D company for the conduct of its business can be proceeded against and
punished under the law. [227G, H; 228A,B]

2. In the present cases, on a careful perusal of the complaints lodged
by the Food Inspector under the Act it is evident that intimation regarding
the nomination had been communicated to the Food Inspector before the
E complaints came to be lodged. This is evident from the averments made
in the respective complaints. The nomination was, however, not acted upon
by the complainant on the ground that it was incomplete. It was, therefore,
said that in the absence of a valid nomination from the concerned company
the Directors of the company were liable to be proceeded against and
F punished on proof of the charge levelled against them in the complaint.
Thus there is no allegation in the complaint which would bring the case
within the mischief of section 17 (4) of the Act. There is no allegation in the
complaint that the offence was committed with the consent/con-
nivance/negligence of the Directors, other than the nominated person, who
were impleaded as co-accused. Therefore, the allegations in the complaint
G do not make out a case under sub-section(4) of section 17 of the Act. That
being so, the inclusion of the co-accused other than the company and the
nominated person as the persons liable to be proceeded against and
punished cannot be justified. [230G, H; 231A-C]

H Municipal Corporation of Delhi v. Ram Kishan Rohtagi, & Ors., [1983]
R. BANERJEE v. H.D. DUBEY [AHMADI, J.] 223

1 SCR 884, relied on. A
3. Since the validity of the nominations require investigation, the
matters are remanded to the trial court with a direction to inquire into the
question whether the nomination forms were received and acknowledged
by the Local (Health) Authority competent to receive and acknowledge the
same. This question will be considered as a preliminary question and the B
magistrate will record a finding thereon. If he comes to the conclusion that
the nomination forms had been acknowledged by the competent Local
(Health) Authority he shall drop the proceedings against the Directors of
the Company, other than the company and the nominated persons. If on
A__ the other hand he comes to the conclusion that the prescribed forms had C
,. been acknowledged by a person other than the com11etent Local (Health)
Authority he will proceed against all the persons who are shown as the
..1... accused in the complaint i.e. all the Directors including the nominated
person and the company. [232H; 233A-C]

CRIMINAL APPELLATE JURISDICTION Criminal Appeal D
Nos. 167-169 of 1992.

From the Judgment and Order dated 4.2.91 of the Madhya Pradesh
High Court in Crl. Revision Nos. 356, 357 and 358/89.

Ram Jethmalani, Ravinder Narain, B. B. Lall, Ashok Sagar and S. E
__.J Sukumaran for M/s IJBD & Co. for the Appellants.

U.N. Bachawat, Ms. Mridula Gupta and Uma Nath Singh for the
Respondents.

The Judgment of the Court was delivered by F

AHMADI. J. Special leave granted.

The short question which arises for determination in these appeals
is whether it was permissible to launch a prosecution under sub-section (1) G
of section 17 of the Prevention of Food Adulteratioq Act, 1954 (hereinafter
called the 'the Act') against the Directors and Managers of public limited
companies, namely, M/s. Lipton India Limited and M/s. Hindustan Lever
Limited, for the commission of the alleged offence punishable under the
aforesaid provisions notwithstanding the nomination made by the said
companies as required by sub-section (2) of section 17 of the Act. In order H
224 SUPREME COURT REPORTS [1992] 2 S.C.R.

A to appreciate the contention raised on behalf of the appellants it is neces- ...,..,
sary to notice a few provisions of the Act. Section 7 of the Act inter alia
. provides that no person shall himself or by any person on his behalf
manufacture for sale, or store, sell or distribute any adulterated food or
any misbranded food or any article of food in contravention of the
provisions of the Act and the rules made thereunder. Section 16 prescribes
B penalties for contravention of the provisions of the Act. It lays down that
·if any person whether by himself or by any person on his behalf, manufac-
tures for sale, or stores, sells or distributes any article of food which is
adulterated or misbranded or the sale of which is prohibited under any
provision of the Act or any rule made thereunder or by an order of the
c Food (Health) Authority, he shall be punishable with imprisonment for a $---..

term which shall not be less than six months but which may extend to three
years, and with fine which shall not be less than one thousand rupees. Then
comes section 17, the relevant part whereof may be reproduced: _.j,,,_

"17. Offences by companies - (1) Where an offence under this
D 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 com-
pany for the conduct of the business of the company
E (hereinafter in this section referred to as the person respon- r
sible), 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
F of the busmess 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 :
i.
G
Provided 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 and that he exercised all due diligence to prevent -{
H the commission of such offence.
R. BANERJEE v. H.D. DUBEY [AHMADI, J.) 225

(2) Any company may, by order in writing, authorise any of A
its directors or managers (such managers being employed main-
ly 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
B
has nominated such director or manager as the person respon-
sible, along with the written consent of such director or
manager for being so nominated.

Explanation - Where a company has different establishment or C
branches or different units in any establishment or branch,
different persons may be nominated under this sub-section in
relation to different establishments 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." D
Sub-section ( 4) which begins with a non·obstantt? clause next
provides that 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, E
any director, manager, secretary or other officer of the company, (not being
a person nominated under sub-section (2)) suc:h 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.

Section 23 of the Act empowers the Central Government to make F
rules. In exercise of the said power the Central Government has framed
rules known as the Prevention of Food Adulteration Rules, 1955
(hereinafter called 'the Rules'). Rule 12-B with whi~h we are concerned
reads as under :

"Form of nomination of Director or Manager and his consent, G
. under Section 17 - (1) A company may inform the Local
(Health) Authority of the concerned local area, by notice in
duplicate, in Form VIII containing the name and address of
the Director or Manager, who has been nominated by it under
sub-section (2) ·of section 17 of the Act to be in charge of, and H
226 SUPREME COURT REPORTS [1992] 2 S.C.R.

A responsible to, the company for the conduct of the business of
the company or any establishment, branch or unit thereof :

Provided that no such nomination shall be valid unless the
Director or Manager who has been so nominated, gives his
consent in writing and has affixed his signature, in Form VIII
B in duplicate in token of such consent.

(2) The Local (Health) Authority shall sign and retur~ one
copy of the notice in Form VIII to the company to signify the
receipt of the nomination and retain the second copy in his
c office for record."

Form VIII is in three parts. The first part is in the nature of a notice
that the company has by a resolution passed at its meeting nominated its
named Director/Manager to be in charge of, and responsible to, the
company for the conduct of the business of the said company or estab-
D lishment/branch/unit thereof. A certified copy of the resolution has to be
sent along with the form. This part must be signed by the Managing
Director/Secretary of the Company. The second part relates to the accep-
tance of the nomination and must be sigtied by the nominated Direc-
tor/Manager. The third part has to be signed by the Local (Health),
E Authority acknowledging the receipt of the nomination.

It is clear from the plain reading of section 17 that where an offence
under the Act is alleged to have been committed by a company, where the
company has nominated any person to be in charge of, and responsible to,
the company for the conduct of its business that person will be liable to be
F proceeded against and punished for the commission of the offence. Where,
however, no person has been so nominated, every person who at the time
of the commission of the 9ffence was in charge of, and responsible to, the 4.
company for the conduct of its business shall be proceeded against and }__
punished for the said crime. Even in such cases the proviso offers a
G defence, in that, the accuied can prove his innocence by showing that the
offence was committed without his knowledge and notwithstanding the
exercise of due diligence to prevent it. The scheme of sub-section (1) of \
section 17 is, therefore, clear that the cases where a person has been
nominated under sub-section (2) of section 17, he alone can be proceeded ---{
H against and punished for the crime in question. It is only where no such
R. BANERJEE.v. H.D. DUBEY [AHMADI, J.] 227

·~ person has been nominated that every person who at the time the offence A
was committed was in charge of, and was responsible to, the company for
the conduct of its business can be proceeded against and punished. The

-
proviso, however, lays down an exception that any such person proceeded
against shall not be liable to be punished if he proves that the offence was
committed without his knowledge and that he had exercised all due B
4. diligence to prevent the commission thereof. Sub-section (2) of section 17
empowers the company to authorise any of its Directors or Managers 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
A_ the Act. It further empowers the company to give notice to the Local
(Health) Authority in the prescribed form that it has nominated a Director
c
or Manager as the person responsible to the company for the conduct of
;._ its business. This has to be done with the written consent of the nominated
Director or Manager. Where a company has different establishments or
branches or units, different persons may be nominated in relation to the
different establishments/branches/units and the person so nominated shall D
be deemed to be the person responsible in respect of such establishment,
branch or unit. Sub-section (4) of section 17 overrides the preceding
sub-sections and posits that where an offence has been C')mmitted by a
company and it is proved that the offence was committed with the consent
or connivance of, or is attributable to any neglect on the part of any E
--'.. Director, Manager, Secretary or other officer of the company, other than
the one nominated, such Director, Manager, Secretary or other officer shall
also be deemed guilty and be liable to be proceeded against and punished
for the sall!e. This sub-section, therefore, makes it clear that notwithstand-
ing the nomination under sub-section (2) of section 17 and notwithstanding F
clause (a)(i) of sub-section (1) of section 17, any Director, Manager,
... Secretary or other officer of the company, other than the · nominated
_,.__ person,. can be proceeded against and punished if it is shown that the
offence ·was committed with his consent or connivance or negligence. It is
crystal clear from the scheme of section 17 that where a company has
committed an offence under the Act, the person nominated under sub-sec-·
G
tion (2) to be in charge of, and responsible to, the company for the conduct
of its business shall be proceeded against unless it is shown that the offence
~ was committed with the consent/connivance/negligence of any other Direc-
tor, Manager, Secretary or Officer of the company in which case the said
H
228 SUPREME COURT REPORTS [1992] 2 S.C.R.

A person c.fu also be proceeded against and punished for the commission of
the said offence. It is only where no person has been nominated under "r
sub-section (2) of section 17 that every person, who at the time of the
commission of the offence was in charge of and was responsible to the
company for the conduct of its business can be proceeded against and
B · punished under the law.

In the instant case it is the contention of both the companies, namely )-
(i) M/s. Lipton India Limited and (ii) M/s. Hindustan Lever Limited thaf
they had made the nomination as required by sub-section (2) of section 17
of the Act and, therefore, only the nominated person could be proceeded
C against and punished since there is no allegation in the complaints lodged ;:S
by the Food Inspector to bring the case within sub-section (4) of section
17 of the Act: 'If the said two companies can show from the record of the
case that a valid nomination was made prior to the commission of the ..4...
alleged offence and the allegations in the complaints do not attract sub-
D section (4) of section 17, the appellants-Director, Manager and other
Officers would be justified in contending that they cannot be proceeded
against or punished for the offence alleged to have been committed by their
respective companies.

The facts of the present case reveal that Mr. H.D. Dubey, Food
E Inspector, had visited the godown of Lipton India Limited situate at
Panagarh, Jabalpur and had lifted samples of Tree Top. Orange Drink in >-
Tetrapacks and Dalda Vanaspati Ghee manufactured by the said two
companies as he suspected the said products of the said two companies to
be adulterated. During inspection the Food Inspector found that the Tree
·F Top Tetrapacks carried the date of manufacture as June 1988 as evidenced
by the label affixed thereto and since the date of expiry was stated to be
six months from the date of manufacture, the product was adulterated as --1
six month~ had already elapsed on the date of inspection. It was, therefore, ~
felt that the product was misbranded or adulterated. Suffice it to say that
the samples collected by the Food Inspector from the said godown were
G forwarded to the Public Analyst for examination and report as required by
law and the Public Analyst reported that the samples of all the three
products, namely, Tree Top Tetrapacks and Vanaspati Ghee manufactured
by M/s. Lipton India Limited as well as by M/s. Hindustan Lever Limited -(
were adulterated as they did not conform to the standard prescribed by
H law. It was on the receipt of this report that the Food Inspector filed three
R. BANERJEE v. H.D. DUBEY [AHMADI, J.] 229

separate complaints against the company as well as its Directors, Managers A
'-T and other officers for the commission of offences punishable under section
7/16 read with section 17 of the Act.

The appellants, however, contend that since the company had made
a nomination as required by sub-section (2) of section 17 of the Act, only
B
the person nominated could be proceeded against and punished for the
../-. alleged offence along with the company. So far as Liptoll India Limited is
concerned, it is said that it had nominated one H. · Dayani py company
resolution dated 15th December, 1988 as the person to be in charge of,
and responsible to, the company for the conduct of ics business at its
-~
- Nagpur branch and intimation thereof was sent as required by Rule 12B c
with the consent of the said H. Dayani to the concerned Local (Health)
Authority and hence the said H. Dayani alone could be proceeded ·against
j._ and punished, besides the company, for the commission of the offence in
question. A copy of the resolution passed by the Board of Directors of the
company at its meeting held on 15th December, 1988 was annexed to the D
intimation sent in the prescribed form under Rule 12B of the Rules. M/.s
Hindustan Lever Limited contends that it too had nominated one Dr.
Nirmal Sen as the person in charge of, and responsible to, the said.
company for the conduct of its business at the Shamnagar factory and
hence besides the company the said Dr. Nirmal Sen alone could be
proceeded against and punished. That company also had intimated the E
.. ......(
Local (Health) Authority about the nomination of Dr. Nirmal Sen as the
person in charge of, and responsible to, the said company for the conduct
of its business at its Shamnagar factory and this was duly verified by the
Local (Health) Authority of Bhatpara Municipality exercising administra-
tive control over the area in which the said factory was situate. As pointed F
out earlier if the two companies succeed in showing that they had made
,.. valid nominations of H. Dayani and Dr. Nirmal Sen, respectively, and had
duly intimated the concerned Local (Health) Authority about the same
,),._,
before the commission of the alleged offences, there can be no doubt that
the case. would fall within the ambit of sub-clause (i) of clause (a) of
sub-section (1) of section 17 of the Act and not under sub-clause (ii) G
thereof. It would then be necessary for the prosecuting agency to show
from the averments made in the complaint that the case falls within
sub-section (4) of section 17 of the Act. If the prosecuting agency fails to
'r show that the offence was committed with the consent or connivance of
any particular Director, Manager, Secretary or other officer of the com- H
230 SUPREME COURT REPORTS [1992] 2 S.C.R.

A pany or on account of the negligence of any one or more of them, the case
set up against the appellants cannot be allowed to proceed.

It may at this stage be mentioned that H. Dayani has filed an affidavit
stating that at the material point of time he was the Branch Manager of
the Nagpur Branch of Lipton India Limited and the said branch had a
B godown at Panagarh, District Jabalpur, where Dalda Vanaspati in different
packings and Tree Top Tetrapack were stored. By the Board's Resolution
dated 15th December, 1988 he was nominated under section 17(2) of the
Act to be the person in charge of, and responsible to, the company for the
conduct of its business at Nagpur Branch. He further states that as per
C Rule 12B, a nomination in Form VIII was duly sent by the company to the
Local (Health) Authority at Jabalpur and he had signed the said form in
token of having accepted the nomiuation. This form, says the· deponent,
was duly received by the Local (Health) Authority, Panagarh, Jabalpur on
21st February, 1989. Similarly, Dr. Nirmal Sen has filed an affidavit stating
D that he was the Factory Manager of the Shamnagar factory of Hindustan
Lever Limited at the material time and his company had a godown at
Panagarh, District Jabalpur, where Dalda Vanaspati in different packings
was stored. By the Board's Resolution dated 22nd March, 1983 he was
nominated under section 17(2) of the Act to be in charge of, and respon-
sible to, the company for ·the conduct of its business at the Shamnagar
E factory and in that capacity he was entitled to exercise all such powers and
take all such steps as considered necessary or expedient to prevent the
commission of any offence under the Act. As required by Rule 12B, a
nomination in Form VIII was sent by his company to the Local (Health)
Authority, Bhatpara Municipality and he had signed the same in token of
F having accepted the nomination made in his favour on 13th April, 1983.
He states that this form was duly received by the Local (Health) Authority
on the same day. The aforesaid sworn statements made by H. Dayani and
Dr. Nirmal Sen were produced ory record to assure the Court that the
nominated persons of the said two companies own their responsibilities
under the Act pursuant to the nomination.
1.
G
On a careful perusal of the complaints lodged by the Food Inspector
under the Act it is evident that intimation regarding the nomination in
favour of H. Dayani and Dr. Nirmal Sen had been communicated to the
Food Inspector before the complaints came to be lodged. This is evident
H from the averments made in the respective wmplaints. The nomination

'
R. BANERJEE v. H.D. DUBEY [AHMADI, J.] 23i
was, however, not acted upon bythe complainant on the ground that it was A
~
incomplete. It was, therefore, said that in the absence of a valid nomination
from the concerned company the Directors of the company were liable to
be proceeded against and punished on proof of the charge levelled again!>t
them in the complaint. It will thus be seen that there is no allegation in the
complaint which would bring the case within the mischief of section 17(4)
of the Act. There is no allegation in the complaint that the offence was
B
- --4. committed with the consent/connivance/negligence of the Directors, other
than the nominated person, who-were impleaded as co-assued. We are,
therefore. satisfied that the allegations in the complaint do not make out a
case under sub-section (4) of section 17 of the Act. That being so, the
-~- inclusion of the co-accused other than the company and the nominated c
person as the persons liable to be proceeded against and punished cannot
be justified. As held by this Court in Municipal Corporation of Delhi v. Rwi
~ /(jshan Rohtagi & Ors., [1983] 1 SCR 884 where the allegations set out in
the complaint do not constitute any offence, no process can be issued
against the co-accused other than the company and the nominated person
D
and the High Court would be justified in exercising its inherent jurisdiction
under section 482 of the Code of Criminal Procedure, 1973 to quash the
order passed by the Magistrate taking cognizance of the offence against
such co-accused.

That brings us to the question whether process could be issued E
. -'.._ against such co-accused under sub-clause (ii) of clause (a) of sub-section
(1) of section 17 of the Act. This would depend on the Court's finding
whether there was a valid nomination in favour of H. Dayani and Dr.
Nirmal Sen. If there was a valid nomination in existence at the date of the
commission of the offence there can be no doubt that the case would be F
governed by section 17(1)(a)(i) of the Act and section 17(1)(a)(ii) would
,.. not be attracted. The nomination in favour of H. Dayani shows that it was
received by the Local (Health) Authority on 21st February, 1989 and the
,.).__
same was signed by the Health Officer, Municipal Corporation, Jabalpur
on the s'.1111e day and a copy thereof was returned to the company sometime
in March 1989. Although in the letter of the Food Inspector dated 21st G
March, 1989 it was stated that the nomination form could not be accepted
as it was not signed by the Local (Health) Authority, no such averment was
made in the complaints subsequently filed. In the complaints all that is said
~,,.....,..._

is that the nominations are not valid as they are incomplete. Now during
the pendency of these appeals the Health Officer has by his letter dated H
232 SUPREME COURT REPORTS (1992) 2 S.C.R.

A 3rd October, 1991 informed as under:
"However, it is beyond my knowledgethat who has cut Jabalpur
and written Panagarh in place of Jabalpur when the nomination
was handed over to the party the word Jabalpur was written
011 the document, Form No. VIII."
B
A perusal of the nomination form of H. Dayani shows that some
word has been scored out and Panagarh .has been written by its side.
However, if it is the contention of the complainant that this change was
subsequently made after a copy of the nomination was handed over to the
C party, the original document in the possession of the Health Officer could
have been produced to show that Panagarh was subsequently added for
Jabalpur. Even the scored out word does not read like Jabalpur. No where
in the complaint has it been contended that the ·document has been
tempered with subsequently. It is clear from this communication thaLthe
nomination was sent in Form VIII and the same duly received and acknow-
D ledged by the Health Officer, Municipal Corporation, Jabalpur. It is,
however, contended that since of godown in which the offending goods
were stored was situate at Phutatal {Panagarh) of Jabalpur district, the
Local (Health) Authority was not the Health Officer of the Jabalpur
Municipality but the Civil Surgeon or the Chief Medical Officer of District
E Jabalpur. A notification issued by the State Government dated· 14th
February, 1983 under clause (viii) of section 2 of the Act has been relied
upon. It is, therefore, necessary to inquire into the question whether the
nomination of H. Dayani was sent to, received and acknowledged by the
competent Local {Health) Authority.

F The nomination form pertaining to Hindustan Lever Limited is dated
30th March, 1983 in favour of Dr. Nirmal Sen, Factory Manager of the
Shamnagar unit of the company. Dr. Nirmal Sen has signed that form on
13th April, 1983. It appears to have been counter-signed by the Food
Inspector, Bhatpara Municipality. It is, therefore, not clear if it has been
signed by the competent Local (Health) Authority of the area in which the
G
godown from which the offending goods were recovered was situated. This
too is a matter which needs investigation.

In the result, the appeals are allowed. The order of the learned
Magistrate as well as the impugned order of the High Court are set aside.
H The matters are remanded to the learned trial magistrate with a direction
R. BANERJEE v. H.D. DUBEY [AHMADI, J.] 233

to inquire into the question whether the nomination forms nominating H. A
Dayani and Dr. Nirmal Sen were received and acknowledged by the Local
(Health) Authority competent to receive and acknowledge the same. This
question will be considered as a preliminary question and the learned
magistrate will record a finding thereon. If he comes to the conclusion that
the nomination forms had been acknowledged by the competent Local
(Health) Authority he shall drop the proceedings against the Directors of B
the company, other than the company and the nominated persons. If on
the other hand he comes to the conclusion that the prescribed forms had
been acknowledged by a person other than the competent Local (Health)
Authority he will proceed against all the persons who are shown as the
--""- accused in the complaint i.e. all the Directors including the nominated
-person and the company. The appeals are allowed accordingly.

G.N. Appeals allowed.

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