In an application filed before the Bombay High Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, to challenge the proceedings in a summary criminal case filed by the Inspector of Legal Metrology pending before the 5th Joint Civil Judge (Junior Division) and Judicial Magistrate First Class, a Single Judge Bench of Justice Urmila Joshi-Phalke quashed the complaint as well as the impugned proceedings against the applicant.
A criminal complaint was filed against the applicant, wherein it was alleged that during an inspection visit to the premises of M/s. Walmart India Private Ltd. (Walmart), it was revealed that the manufacturer had not written its name or address, commodity name, and the total number of retail packages for “Sensodyne Ultra-Sensitive (Specially Designed for people with sensitive teeth), Fresh Gel”. The packages were kept for sale on the premises with the supplier’s tax invoice of M/s. Glaxo Smithkline Consumer Healthcare Limited (Glaxo).
It was alleged that the accused was the dealer of Glaxo and that he had breached Section 18(1) of the Legal Metrology Act, 2009, Rule 24 of the Legal Metrology (Packaged Commodities) Rules, 2011, and was guilty of an offence punishable under Section 36(1) of the Legal Metrology Act. Upon receipt of the complaint, the Magistrate took cognizance and issued the process.
Aggrieved, the applicant filed the present application to quash the First Information Report (FIR), contending that, although he was the Director of Glaxo, the complaint did not allege that he was responsible for the company’s day-to-day activities.
Considering Section 49 of the Legal Metrology Act, 2009, the Court noted that no person had been nominated to exercise the powers as required under sub-section (2) and that no statement had been made by the complainant to counter the said contention. It was said that Section 49, sub-section (1) provides a complete mechanism to fix the vicarious liability of the Managing Director/Directors in case of the offences committed by the company.
The Court stated that no role had been attributed to the applicant in the commission of the crime and that unless and until a specific averment was made in the complaint, the Magistrate should not have taken cognizance against the applicant and other Directors. The Court also noted that the offence was committed by the company, but the same was not arrayed as an accused.
The Court referred to the Supreme Court’s decision in Pepsico India Holdings Private Limited v. Food Inspector and Anr. (2011) 1 SCC 176 and stated that when a company has not been arrayed as an accused, no proceeding can be initiated against it even where vicarious liability is fastened under certain statutes.
Further, the Court noted that, pursuant to an order of the National Company Law Tribunal, Mumbai, Glaxo was merged and amalgamated with Hindustan Unilever Limited w.e.f. 01-04-2020. It was stated that the Magistrate had not recorded his satisfaction while issuing a summons against the applicant, which is a sine qua non for initiating criminal proceedings. The Court said that where the Magistrate is exercising his jurisdiction on a complaint filed either under Section 156(3) or Section 200 of the Code of Criminal Procedure, 1973 (CrPC), the Magistrate is required to apply his mind.
It was said that the Penal Code does not have any provision to attach vicarious liability on the Managing Director of the company when the accused is the company. Thus, the Court noted that the applicant could not be liable for prosecution in individual capacity and quashed the entire complaint.
While allowing the application, the Court quashed the impugned proceedings, including the summoning order and other subsequent orders.
Appearances:
For Applicant – Mr. H.V. Thakur, Mr. Parth Ranade
For Non-Applicant – Mr. H.D. Dubey
