P.C. Borooah, J.
1. The second petitioner is the Chairman of M/s. G. Atherton & Co. Private Ltd. (the petitioner No. 1) and petitioners Nos. 3, 4, 5 and 6 are the Directors and petitioner No. 7 is the Godown Keeper of the said company at 21, R. N. Mukherjee Road, Calcutta.
2. On Dec. 23, 1975 one Food Inspector of the Corporation of Calcutta by the name of Dr. B. Rai Chowdhuri inspected the godown of the company at the aforesaid premises and seized from the petitioner No. 7 thirty cases of Horlicks, each containing 24 bottles with the exception of one case which contained 21 bottles.
3. One bottle was sent to the Public Analyst for examination and the Public Analyst gave a report to the effect that the sample of Horlicks which he examined was packed in a glass bottle on which there was a printed paper label bearing a statement 'Throughout the world Horlicks enjoys the confidence of the medical profession' and as such R. 39 of the Prevention of Food Adulteration Rules had been infringed and hence it was mis-branded.
4. On the aforesaid allegation a petition of complaint was filed on Feb. 2, 1976 against the petitioners on behalf of the opposite party in the court of the Metropolitan Magistrate and Magistrate First Class, Calcutta. The learned Magistrate by an order dated Feb. 2, 1976 took cognizance on the basis of the said complaint and ordered the issue of summons against the petitioners. This order has been challenged in this Rule.
5. Mr. D. K. Dutta, learned Advocate appearing on behalf of the petitioners, has submitted before us that the petition of complaint on the face of it, does not disclose any offence under the Prevention of Food Adulteration Act, 1954 or the Rules framed thereunder (hereinafter the Act and the Rules) and as such, the cognizance taken by the learned Magistrate is bad in law. Mr. Dutta further submitted that under Section 17 of the Act when an offence has been committed by a company only the persons, who at the time of commission of the offence, were in charge of or were responsible to the company for the conduct of the company's business, as well as the company, are liable to be proceeded with for an offence committed under the Act or the Rules. In the instant cam, according to Mr. Dutta, in the petition of complaint on the basis of which the learned Magistrate took cognizance, there is no averment to the effect that the petitioners Nos. 2 to 7 were in any way in charge of or were responsible to the first petitioner for the conduct of its business. That being so the cognizance taken against the petitioners Nos. 2 to 7 was in any event bad in law.
6. The submissions made by Mr. Dutta have not been controverted by Mr. Biren Mitra, learned Public Prosecutor appearing on behalf of the State. According to Mr. Mitra also the cognizance taken is not in accordance with law.
7. The report of the Public Analyst was to the effect that R. 39 of the Rules had been contravened as the label bore a statement, namely, 'Throughout the world Horlicks enjoys the confidence of the medical profession', and it was mis-branded.
8. Rule 39 of the Rules is in the following terms:
There shall not appear in the label of any package containing food for sale the words 'recommended by the medical profession' or any words which imply or suggest that the food is recommended, prescribed, or approved by medical practitioners.
9. What R. 39 lays down is that on any label of any food articles the words 'recommended by the medical profession' or words which imply or go to suggest that the article of food has been recommended, prescribed or approved by medical practitioners must not appear.
10. In the instant case, the label on the Horlicks bottle contained the words 'it enjoys the confidence of the medical profession'. The question is whether these words are hit by R. 39 of the Rules Enjoying the confidence of the medical profession does not mean that it has been recommended by the medical profession nor does it imply that it has been prescribed or approved by medical practitioners. An article of food might enjoy the confidence of a doctor but it does not necessarily mean that he should approve of it or prescribe it for a particular patient. Therefore, R. 39 is not attracted in the instant case.
11. The impugned order suffers from yet another defect, under Section 17 of the Act, where an offence has been committed by a company, every person who at the time the offence was committed, was in charge of or was responsible to the com- pany for the conduct of its business as well as the company, shall be deemed to be liable to be proceeded with for an offence committed under the Act or the Rules. Therefore, under the said section a company has been made primarily liable, but to make other persons vicariously liable, it has to be shown that such persons were in charge of or were responsible to the company for the conduct of its day to day business.
12. In the absence of any mention in the petition of complaint as to how the petitioners Nos. 2 to 7 were concerned in the carrying on of the day to day business of the petitioner company, process could not have been issued against them. The learned Magistrate obviously overlooked the provisions of Section 17 of the Act or issued process without bothering to go through the petition of complaint.
13. The fact that the learned Magistrate acted mechanically will also become apparent on a reference to para 3 of the petition of complaint which reads as follows :-
The Public Analyst opined that the said food is misbranded/unfit for human consumption the sale of the said food is prohibited in the interest of public health as per report of analysis in the schedule form being Report No. A/193/75. A true copy of the said report is attached herewith. The original will be produced at the trial.
14. According to the aforesaid para, the article of food in the instant case is misbranded and unfit for human consumption. It is nobody's case that the sample of Horlicks examined by the Public Analyst was reported to be unfit for human consumption. Therefore, the Food Inspector did not take the trouble fo applying his mind before filing the petition of complaint and the learned Magistrate dittoed him in acting blindly on the basis of such complaint. When arrears in the different courts are mounting it is regrettable that Magistrates do not apply their minds and act mechanically on the basis of petitions of complaint placed before them. Magistrates must bear in mind that they are not expected to act as rubber stamps. It is their duty to see that persons are not unnecessarily harassed by frivolous or illegal prosecutions.
15. In the premises aforesaid, this application must succeed and the proceeding pending against the petitioners In case No. 11D/76 in the Second Court of the Metropolitan Magistrate, Calcutta is quashed. The Rule is thus made absolute.
S.C. Majumdar, J.
16. I agree.