N. Krishnaswamy Reddy, J.
1. The revision petitioner was convicted under Section 16, 2 and 7 of the Prevention of Food Adulteration Act (hereinafter called 'the Act') read with Rules 32 and 47 of the Rules framed thereunder and released on admonition, by the Chief Presidency Magistrate, Madras.
2. The revision petitioner is the Plant Superintendent of the Southern Bottlers Private Limited, who are the manufactures of a beverage-aerated water, known as Coca-Cola. A complaint was received form Dindigul to the effect that the Coca-Cola that was being marketed there was found to cause intoxication and the complaint was forwarded to the Government for necessary action being taken.. P.W. 1 Ramachandran, the Sanitary Inspector of 66-67 Divisions, Madras, went to Messrs Southern Bottlers Private Limited, at No. 26, Mount Road, at about 9-30 a.m. on 22nd July, 1968 and after observing the formalities, he took nine bottles of Coca-Cola from the place where it was manufactured, and paid the price therefor to the revision petitioner who was present then. On analysis by the Public Analyst, it was found that the sample was sweetened artificially with the addition of 0.03 per cent. of saccharine. According to the Public Analyst, though the margin of Saccharine was found to be negligible, technically it must be deemed to be mis-branded under Section 2 (ix) (k) of the Act. P.W. 1, after receiving the report from the Public Analyst, filed the complaint against the revision petitioner in his capacity as the Plant Superintendent of Southern Bottlers Private Limited.
3. Several points were raised before the learned Chief Presidency Magistrate. But before me, the learned Counsel for the petitioner confined himself to one point, namely, that since the offence was committed by a company, the prosecution should have filed the complaint against the company and the persons in charge of or responsible to the company for the conduct of the business of the company. He further submitted that there was no material on record to show that though the revision petitioner was the Plant Superintendent that he was either in charge of or was responsible to the company for the conduct of the business of the company and that, therefore, his conviction cannot be sustained. There cannot be any doubt in this case that the offence, if committed, was committed by the company. Learned Counsel for the Corporation is unable to say as to why the company was not prosecuted. However, he admitted that the company could have been prosecuted as the offence must have been deemed to be committed by the company as the manufacturers. Southern Bottlers Private Limited, is a company under Section 17 of the Act. It is stated by the learned Counsel for the Corporation that the petitioner was prosecuted as a vendor as he sold Coca-Cola bottles to P.W. 1 for a price and that, therefore, he would come under Sections 7 and 16 of the Act. I am unable to agree with him. Once the offence is committed by the company, the procedure that has to be followed is only under Section 17 of the Act. Section 17 runs thus:
Offences by companies : (1) Where an offence under this Act has been committed by a company, 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, as well as 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 or that he exercised all due diligence to prevent the commission of such offence.
2. Notwithstanding anything contained in Sub-section (1), 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, 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; and
(b) 'director ' in relation to a firm means a partner in the firm.
It is, therefore, clear from Section 17 that under Clause (1) if the offence was committed by the company, the company as well as the 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 under Clause (2) if the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such persons mentioned therein shall be liable to be proceeded against and punished. The prosecution, therefore, must have filed a complaint against the company first and then against the persons against whom they could proceed under Section 17 (1) and (2) of the Act. It is, therefore, clear from the complaint itself that the revision petitioner has been prosecuted not in his individual capacity as a vendor but in the capacity of a person employed by the firm as the Plant Superintendent. There is nothing on record to show, as suggested by the learned Counsel for the petitioner, that the Plant Superintendent was a person responsible or in charge of or responsible to the manufacture or sale of Coca-Cola. In his statement under Section 342, Criminal Procedure Code, the petitioner stated that he was only responsible for the bottling of the liquid and for nothing else. In this circumstance, it is doubtful whether the revision petitioner was in charge of the firm in respect of the manufacture or sale of Coca-Cola. He will, however, be entitled to the benefit of doubt. Apart from this I am of the view that this is a case where Section 95, Indian Penal Code, can be applied, taking into consideration the nature of the offence committed. Section 95, Indian Penal Code, reads thus:
Nothing is an offence by reason that it causes or that it is intended to cause or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such a harm.'
' Offence ' includes an ' offence ' under the local law or special law under the definition of Section 40, Indian Penal Code. Section 95, Indian Penal Code, therefore, will apply to special law like Prevention of Food Adulteration Act also.
4. The learned Chief Presidency Magistrate, in relation to the nature of the offence committed by the revision petitioner, has observed as follows:
The accused must therefore be found guilty in a purely technical sense. In my view this prosecution has served no purpose and is in fact wholly unnecessary. When the report of the Analyst disclosed nothing serious at all the sanctioning authority at least could have exercised discretion properly and allowed the matter to be dropped instead of launching on a prosecution which is clearly pointless. I am afraid it is prosecutions such as this that create an impression of harassment and contribute to bringing the law into disrepute. It is wholly unnecessary to impose any other punishment, in the circumstances of this case, except to admonish the accused. Admonished accordingly.
With these observations, the learned Chief Presidency Magistrate must have applied Section 95, Indian Penal Code, and acquitted the petitioner as, even though it may be an offence, it cannot be deemed to be an offence under law by virtue of Section 95, Indian Penal Code. In the result, the conviction is set aside and the revision petitioner is acquitted.
5. The revision petition is, therefore, allowed.