HARI SHANKAR AGGARWAL versus THE STATE OF RAJASTHAN & ANR on 10 March 2021

ORDER

B1. Leave granted.

2. Heard learned counsel for the appellant and Dr. Manish Singhvi,learned senior counsel appearing for the State of Rajasthan. This appealhas been filed against the judgment and order dated 17.04.2018 passedby the High Court of Judicature for Rajasthan, by which the CriminalCMiscellaneous (Petition) No.1664/2018 filed by the appellant has beendismissed.

3. Brief facts necessary for deciding this appeal are:- a complaint was filed by the Medical and Health Department,(Rajasthan) for offence under Section 7/16, Prevention of FoodDAdulteration Act, 1954 on the basis of inspection made on 02.03.2002 onOswal Traders Shop. In a complaint, it was averred that on informationreceived from Commercial Tax Department, Jaipur, the nominee of firmis Hari Shankar Aggarwal S/o Shri Vasudev Prasad Agarwal,therefore he has been made a party. In paragraph 11, it was furtherstated that according to information received from the Local HealthEOfficer, Mathura the Director of M/s Bhola Baba Milk Food Industryis Devendra Singh Bhadauria, who was also impleaded as one of theparty. The Judicial Magistrate, Jhalwar, Rajasthan, took cognizance ofthe offence and issued summon by order dated 04.08.2003. Against theorder dated 04.08.2003, the appellant-Hari Shankar Aggarwal filedFcriminal case No.17 of 2017, challenging the order of the Trial Courtdated 04.08.2003.

4. The case of the appellant is that he was not a nominee of thefirm and one Devendra Singh Bhadauria was declared as nominee.The information regarding his nomination had already been submitted toGthe Chief Medical Officer, Mathura, which was received on 21.10.1995and there being no allegation against the appellant, no cognizance of theoffence could have taken against the appellant. The petition was dismissedby the Special Judge on 16.02.2018 against which the CriminalMiscellaneous Petition was filed in the High Court, which has beenrejected by the impugned judgment of the High Court. Learned counselH

for the appellant relying on Annexure P-2, which is an information inForm VIII submitted to the Chief Medical Officer on 21.10.1995, submitsthat form nominating Devendra Singh Bhadauria, was sent by letterdated 21.02.1995 which was duly received by Chief Medical Officer on21.10.1995. Hence, the complaint against the appellant alleging himselfto be nominee ought not to have been taken cognizance. It is submittedthat a copy of letter dated 21.02.1995 duly received by the Cheif MedicalOfficer on 21.10.1995 has been filed before the Courts below and thesaid document clearly proved that nominee was Devendra SinghBhadauria and cognizance could have been taken against DevendraSingh Bhadauria and therefore the Courts below erred in dismissingthe claim of the appellant.

5. Dr. Manish Singhvi, learned senior counsel appearing for theState submits that the document (Annexure P-2) dated 21.02.1995claimed to be served on 21.10.1995, has not been believed by the Courtsbelow. He has referred to the reasons given in the order dated 16.02.2018passed by the Special Judge, (NDPS) Jhalwar, Rajasthan. He submitsthat there are reasons given by the Special Judge for not accepting thedocument. Hence, the claim of the appellant has rightly been rejected.

6. We have considered the submissions of the learned counsel forthe parties and perused the record. Before we proceed and examine therespective contention of the parties, we need to reproduce paragraphs10 and 11 of the complaint which are to the following effect:- “10. That the Krishna Brand Ghee procured by M/sFalaudi Trading Co. from Bhole Baba Milk Food Industry 181Sindhi Colony Whose Bill No.3074 dated 05/03/2002 was producedfrom which it is clear that M/s Falaudi Trading Co. has procuredGhee from the said firm. From the information received fromCommercial Tax Department, Jaipur the nominee of the said firmis Sh. Hari Shankar Aggarwal S/o Vasudev Aggarwal, therefore,he has also been made a party.

11. That the boxes were labeled as Bhole Baba Milk FoodIndustry, Agra and the said firm was given several letters eventhen, no information regarding the firm was rejected. Accordingto information received from local health officer, Mathura thedirector of Bhole Baba Milk Food Industry Namely DevendraSingh Bhadauria S/o Ram Sewak Singh Badoria R/o HanumanNagar, Fatehabad, District Agra, has been made a party.”

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A7. As per Section 17 of the Food Adulteration Act, 1954, the noticeunder Section 17(2) is contemplated by company to Local HealthAuthority in such form and in such manner as has been prescribed thatit has nominated such Director or Manager as a person who is responsiblealong with written consent of such Director. When we look into paragraph10 of the complaint, it is clearly mentioned that from the informationBreceived from the Commercial Tax Department, Jaipur, the nominee isHari Shankar Aggarwal. Whereas in paragraph 11 of the complaint, itis mentioned that according to information from Local Health Officer,Mathura, the Director is Devendra Singh Bhadauria. For the purposesof Section 17, the nomination has to be given to the Local Health Authority,Caccording to the complaint itself, on the basis of the information receivedfrom Local Health Officer, it is Devendra Singh Bhadauria. The abovestatement in the complaint itself proves the case of the appellant thatinformation of the nomination of the Devendra Singh Bhadauria wassubmitted by letter dated 21.02.1995 which was received on 21.10.1995.D8. Now, coming to the reasons relied by Dr. Manish Singhvi,learned senior counsel for the State that the document is dated 21.02.1995,whereas M/s Bhole Baba Milk Food industry was incorporated andits resolution was filed on 06.03.1995. Hence, the burden of proof,regarding the date on which nominee was made, lies on the appellant.The above observation of the Special Judge in no manner negate theEsubmission of the nomination form which was received by the ChiefMedical Officer, Mathura on 21.10.1995. The information was receivedonly after incorporation of the company and after the resolution referredon 06.03.1995. Dr. Manish Singhvi, learned senior counsel, also submitsthat the nomination form was issued in the letter head of the companyFwhich ought not to have been sent.

9. We have perused the nomination form at page 18 of the paperbook which clearly mentions Form VIII (Rule 12-B).

10. The submission of the learned senior counsel for the respondentthat it could not have been sent on the letter head does not appeal to us.GWhen the nomination was in Form VIII and duly sent and received, itcannot be rejected on the ground that it was sent on the letter head ofthe company. As observed above, the averments in the complaint itselfclearly indicate that it was the name of Devendra Singh Bhadauriawhich was with the Local Health Authority, hence it was he who wasHresponsible for the affairs of the company and reference of Hari Shankar Aggarwal whose name was informed by the Commercial TaxDepartment, has no relevance.

11. In view of the foregoing reasons, we are of the view that theHigh Court as well as the learned Special Judge erred in rejecting thecase of the appellant. It is further to be noticed that there are no specificallegations against the present appellant in the complaint apart from thathe was being impleaded as a nominee. We thus, are of the view that nocognizance could have been taken against the appellant for the offenceunder Section 7/16 of the Prevention of Food Adulteration Act, 1954 andthe Courts below committed error in taking cognizance.

12. In the result, the appeal is allowed and the order takingcognizance as well as the orders passed by the Courts below are setaside.

Bibhuti Bhushan Bose

Appeal allowed.

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