S.66 Food Safety & Standards Act | Criminal Prosecution Cannot Proceed Against Partners Without Arraigning Firm As Accused: JKL High Court

The Jammu and Kashmir and Ladakh High Court recently ruled that the existence of Section 66 in the Food Safety and Standard Act 2006 is a clear pointer to the fact that the criminal prosecution cannot proceed against partners without arraigning the firm as an accused.Observing that there is no concept of vicarious liability in criminal law the court went on to clarify that Section 66 of the said Act prescribes for vicarious liability and therefore when an offence has been committed by a company, every person, who at the time the offence was committed, was incharge, shall be deemed to be guilty of the offence.The observations were made by a bench comprising Justice Sanjay Dhar while hearing a plea in terms of which the petitioners had challenged a complaint filed against them alleging the commission of offences under Section 26 (2) (i) read with Section 59 (i) of the Food Safety and Standards Act, 2006, pending before the Court of Judicial Magistrate, Reasi. The petitioners had challenged the impugned complaint primarily on the grounds that the complaint had been filed against them beyond the period of limitation and hence it was not open for the trial Magistrate to take cognizance of the offence and issue the process against the accused. It was further contended that the prosecution against the petitioners without impleading the partnership firm, of which they happen to be the partners, is not maintainable. Deliberating on the first contention of the petitioner that the complainant had been filed beyond the period of limitation of one year the court noted that section 77 of the said Act debars a Court from taking the cognizance of an offence under the FSS Act after expiry of the period of one year from the date of commission of the offence, unless the Commissioner of Food Safety approves prosecution within an extended period upto three years, subject to the condition that he has to record reasons for doing so. However in the instant case the court noted that the complainant had been filed beyond the period of limitation of 1 year and the order dated 04.03.2016 issued by the Commissioner of Food Safety revealed no reason for approving the prosecution beyond the period of one year from the date when the offence is alleged to have been committed. "The order does not even mention that sanction for prosecution is being approved beyond the period of one year and it does not assign any reason for approving the sanction after the period of one year", the bench underscored. Observing that the cases that are barred by limitation are liable to be quashed without any further enquiry because there is a statutory bar for the Courts to take cognizance of offences in such cases, the court said that in the Instant case not only the sanction for prosecution has been granted after the period of limitation but the complaint has also been filed before the trial Magistrate well after the expiry of prescribed period of one year of limitation. The prosecution against the petitioners is, therefore, liable to be quashed on this ground alone, the court said. Dealing with the second contention of the petitioner that without impleading the firm, of which the petitioners happen to be the partners, the prosecution against them is not maintainable, Justice Dhar explained that Sec 66 of the Act is amply clear that when an offence has been committed by a company, every person, who at the time the offence was committed, was incharge 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. This provision extends the concept of vicarious liability to the persons responsible for the conduct of the business of the company, in a case where the offence has been committed by the company, the court added. Commenting on the application of the principle of Vicarious liability to criminal law the bench explained that in criminal law, there is no concept of vicarious liability and it is only, if there is statute, which makes a person vicariously liable of the act of another person then such a person can be prosecuted for a criminal offence. Section 66 of the FSS Act makes a person, who is incharge of, and responsible for conduct of the business of the company, vicariously liable for the offence committed by the company, the bench pointed. Relying on Aneeta Hada vs. Godfather Travels and Private Limited, (2012) 5 SCC 661 wherein SC while interpreting the provisions contained in Section 141 of the Negotiable Instrument Act, which are pari materia with sec 66 of FSS Act 2006 the bench maintained that arraigning of a company as an accused is imperative and other categories of the offenders can only be brought in dragnet on the touchstone of the vicarious liability, as the same has been stipulated in the provision itself.Thus, without impleading the partnership firm as an accused in the impugned complaint, the criminal prosecution against the...

S.66 Food Safety & Standards Act | Criminal Prosecution Cannot Proceed Against Partners Without Arraigning Firm As Accused: JKL High Court

Basit Amin Makhdoomi

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