The Prevention of Food Adulteration Act, 1954 - Offences by companies

17. Offences 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 (hereafter 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 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 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 establishments or 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.

(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 any body corporate and includes a firm or other association of individuals;

COMMENTS

(i) It is clear from the scheme of section 17 of the Act that where a company has committed an offence under the Act, the person nominated under sub-section (2) to be incharge 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, Manager, Secretary or Officer of the company in which case the said person can also be proceeded against and punished for commission of offence; R.Banerjee v. H.D. Dubey, AIR 1992 SC 1168.

(ii) The person incharge of the company must be prosecuted alongwith the company under this section; State of Assam v. Paban Kumar Aggarwal, 1990 (1) FAC 115.

(iii) In the absence of specific pleadings in the complaint regarding the person incharge of and responsible to the conduct of the business, the prosecution launched against him is not maintainable and the same is to be quashed; Carborandum Universal Madras v. Food Inspector Thiruvettiyur Municipality, 1989 (1) FAC 367.

18. Forfeiture of property —

      Where any person has been convicted under this Act for the contravention of any of the provisions of this Act or of any rule thereunder, the article of food in respect of which the contravention has been committed may be forfeited to the Government:

       Provided that where the court is satisfied that the article of food is capable of being made to conform to prescribed standards for human consumption after reprocessing, the court may order the article of food to be returned to the owner, on his executing a bond with or without sureties, for being sold, subject to the other provisions of this Act, after reprocessing under the supervision of such officer as may be specified therein.

19. Defences which may or may not be allowed in prosecutions under this Act —

(1) It shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale.

(2) A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves—

(a) that he purchased the article of food—

    (i) in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer,

   (ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form; and

(b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it.

(3) Any person by whom a warranty as is referred to in section 14 is alleged to have been given shall be entitled to appear at the hearing and give evidence.

COMMENTS

       A person is entitled to benefit under sub-section (2) of section 19 if the fact of the case suggests that he (accused person) has duly discharged the burden to the extent necessary under the above mentioned provision; P. Unnikrishnan v. Food Inspector, Palghat Municipality, AIR 1995 SC 1983.

20. Cognizance and trial of offences —

(1) No prosecution for an offence under this Act, not being an offence under section 14 or section 14A shall be instituted except by, or with the written consent of, the Central Government or the State Government or a person authorised in this behalf, by general or special order, by the Central Government or the State Government:

      Provided that a prosecution for an offence under this Act may be instituted by a purchaser or recognised consumer association referred to in section 12, if he or it produces in court a copy of the report of the public analyst alongwith the complaint.

(2) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act.

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence punishable under sub-section (1AA) of section 16 shall be cognizable and non-bailable.

COMMENTS

(i) The language of sub-section (1) of section 20 of the Act clearly shows that it inhibits institution of prosecution for an offence under the Act except on fulfilment of one or the other of the two conditions. Either the prosecution must be instituted by the Central Government or the State Government or it must be instituted with the written consent of any of the four specified categories of authorities or persons. If either of these two conditions is satisfied, there would be sufficient authority for the institution of such a prosecution for an offence under the Act; A.K. Roy v. State of Punjab, AIR 1986 SC 2160.

(ii) The Chief Medical Officer, Chandigarh undisputedly was a person authorised to institute complaint as per the notification issued by the Administration under section 20(1) of the Act therefore, he could give his consent as well for launching of prosecution. In doing so he was neither delegating his power nor acting contrary to section 20. He was acting within the scope of authority as a person authorised to institute complaint under section 20(1) of the Act has been placed at par with other authorities designated in the sub-section for purposes of granting consent; Food Inspector, Health Deptt., Chandigarh v. M/s Krishna Dhaba, AIR 1994 SC 664.

(iii) No prosecution for an offence under the Prevention of Food Adulteration Act, 1954 shall be instituted except by written consent of Central Government or State Government. Where cognizance was taken on the F.I.R. lodged by the police but there is nothing on record that police was authorised by the Central Government or State Government to institute the prosecution. Then court has no power to hear the complaint thereby rendering the consequent proceedings liable to be quashed; Yamuna Sah v. State of Bihar, 1990(2) FAC 16.

20A. Power of court to implead manufacturer, etc. —

        Where at any time during the trial of any offence under this Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any article of food, the court is satisfied, on the evidence adduced before it, that such manufacturer, distributor or dealer is also concerned with that offence, then, the court may, notwithstanding anything contained in sub-section (3) of section 319 of the Code of Criminal Procedure, 1973 (2 of 1974) or in section 20 proceed against him as though a prosecution had been instituted against him under section 20.

COMMENTS

(i) Under section 20A powers cannot be exercised before the commencement of trial because it is only on the basis of evidence produced that the Magistrate can act under this section; Radha Krishna Nair v. Food Inspector, 1989(1) FAC 234.

(ii) The power to implead the manufacturer, distributor or dealer under the section 20A of the Act can be exercised during the trial of an offence under the Act; M/s. Thakur Das Babu Ram v. State of Himachal Pradesh, 1989(1) FAC 343.

20 AA. Application of the Probation of Offenders Act, 1958 and section 360 of the Code of Criminal Procedure, 1973 —

         Nothing contained in the Probation of Offenders Act, 1958 (20 of 1958), or section 360 of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to a person convicted of an offence under this Act unless that person is under eighteen years of age.