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PETITIONER: R. BANERJEE AND ORS.

       Vs.

RESPONDENT: H.D. DUBEY AND ORS.

DATE OF JUDGMENT13/03/1992

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) RAMASWAMY, K.

CITATION:  1992 AIR 1168            1992 SCR  (2) 221  1992 SCC  (2) 552        JT 1992 (2)   436  1992 SCALE  (1)690

ACT:      Prevention of Food Adulteration Act, 1954:      Section       17-Prosecution-Launching       of-Against Directors/Managers  of Public  Limited  Companies-Nomination made   under   sub-section   (2)-Validity   of   Nomination- Prosecution  only against the nominated  person-Not  against others-Impleading   others  as  co-   accused-When   arises- Applicability of sub-section (4).

HEADNOTE:      The  Respondent Food Inspector visited the godown of  a company  and lifted samples of orange drink manufactured  by the company, as also Vanaspati ghee manufactured by the said company as also by another company.  He found that the label affixed to the orange drink carried the date of  manufacture as  June, 1988.  Since the date of expiry was stated  to  be six  months from the date of manufacture he found  that  the products  was mis-branded or adulterated as six  months  had already expired on the date of inspection.  He forwarded the samples  so collected to the public Analyst.  The report  of the  Public  Analyst was to the effect that  all  the  three samples  were  adulterated, as they did not conform  to  the standard prescribed by law.  The respondent then filed three separate  complaints against  the respective  companies,  as well  as Directors, Managers and officers of the  companies, for the commission of offences punishable under Section 7/16 read with section 17 of the prevention of Food  Adulteration Act,  1954.  The appellants’ contention that in view of  the nomination made by the companies, only the persons nominated to  be  incharge of and responsible for the conduct  of  the business   could   be   prosecuted   and   not   the   other Directors/Managers/Officers.      Having been unsuccessful before the Trial Court as also before  the  High Court, the appellants have  preferred  the present appeals by special leave.      Allowing  the  appeals on the question whether  it  was permissible to                                                        222 launch  a prosecution under section 17(1) of the  Prevention of  Food  Adulteration Act, 1954 against the  Directors  and Managers  of  Public Limited Companies  notwithstanding  the

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nomination  made  by the companies as  required  by  section 17(2) of the Act, this Court,      HELD : 1. It is clear from the scheme of section 17  of the  Prevention of Food Adulteration Act, 1954 that where  a company  has committed an offence under the Act, the  person nominated  under  sub-section (2) to be in  charge  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 the commission of the said offence. It  is  only where no person has been nominated  under  sub- section (2) of section 17 that every person, who at the time of  the commission of the offence was in charge of  and  was responsible  to the company for the conduct of its  business can be proceeded against and punished under the law.  [227G, H; 228A,B]      2.  In the present cases, on a careful perusal  of  the complaints lodged by the Food Inspector under the Act it  is evident  that intimation regarding the nomination  had  been communicated  to the Food Inspector  before  the  complaints came to be lodged.  This is evident from the averments  made in the respective complaints.  The nomination was,  however, not acted upon by the complainant on the ground that it  was incomplete.  It was, therefore, said that in the absence  of a valid nomination from the concerned company the  Directors of  the  company  were liable to be  proceeded  against  and punished on proof of the charge levelled against them in the complaint.   Thus  there is no allegation in  the  complaint which  would bring the case within the mischief  of  section 17(4)  of the Act.  There is no allegation in the  complaint that     the    offence    was    committed     with     the consent/connivance/negligence  of the Directors, other  than the  nominated  person, who were  impleaded  as  co-accused. Therefore, the allegations in the complaint do not make  out a case under sub-section (4) of section 17 of the Act.  That being  so,  the inclusion of the co-accused other  than  the company and the nominated person as the persons liable to be proceeded  against and punished cannot be justified.  [230G, H; 231A-C]      Municipal Corporation of Delhi v. Ram kishan Rohtagi  & Ors., [1983]                                                   223 1 SCR 884, relied on.      3.  Since  the  validity  of  the  nominations  require investigation,  the matters are remanded to the trial  court with  a direction to inquire into the question  whether  the nomination forms were received and acknowledged by the Local (Health)  Authority  competent to receive  and   acknowledge the same.  This question will be considered as a preliminary question and the  magistrate will record a finding  thereon. If he comes to the conclusion that the nomination forms  had been acknowledged by  the competent Local (Health) Authority he  shall drop the proceedings against the directors of  the Company,  other than the company and the nominated  persons. If  on  the other hand he comes to the conclusion  that  the prescribed  forms had  been acknowledged by a  person  other than the competent Local (Health) Authority he will  proceed against all the persons who are shown as the accused in  the complaint  i.e.  all the Directors including  the  nominated person and the company. [232H; 233A-C]

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JUDGMENT:      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal  Nos. 167-169 of 1992.      From the Judgment and Order dated 4.2.91 of the  Madhya Pradesh  High  Court  in Crl. Revision  Nos.  356,  357  and 358/89.      Ram Jethmalani, Ravinder Narain, B.B. Lall, Ashok Sagar and S. Sukumaran for M/s IJBD & Co. for the Appellants.      U.N. Bachawat, Ms. Mirdula Gupta and Uma Nath Singh for the Respondents      The Judgment of the Court was delivered by      AHMADI. J. Special leave granted.      The  short question which arises for  determination  in these  appeals  is whether it was permissible  to  launch  a prosecution  under  sub-section  (1) of section  17  of  the Prevention  of  Food  Adulteration  Act,  1954  (hereinafter called the ‘the Act’) against the Directors and Managers  of public limited companies, namely, M/s. Lipton India  Limited and M/s. Hindustan Lever Limited, for the commission of  the alleged  offence  punishable under the  aforesaid  provision notwithstanding the nomination made by the said companies as required  by  sub-section (2) of section 17 of the  Act.  In order                                               224 to appreciate contention raised on behalf of the  appellants it  is  necessary  to notice a few provisions  of  the  Act. Section  7  of the Act inter alia provides  that  no  person shall himself or by any person on his behalf manufacture for sale,  or store, sell or distribute any adulterated food  or any misbranded food or any article of food in  contravention of the provisions of the Act and the rules made  thereunder. Section  16  prescribes penalties for contravention  of  the provision  of  the Act.  It lays down that   if  any  person whether  by  himself  or  by  any  person  on  his   behalf, manufactures  for sale, or stores, sells or distributes  any article  of food which is  adulterated or misbranded or  the sale  of which is prohibited under any provision of the  Act or  any  rule made thereunder or by an order  of  the   Food (Health) Authority, he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not  be less  than one thousand rupees.  Then comes section 17,  the relevant part whereof may be reproduced:          "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  (hereinafter  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.

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                                                      225          R.BANERJEE v. H.D. DUBEY [AHMADI, J.]           (2)   Any  company  may,  by  order  in   writing,          authorise  any of its directors or  managers  (such          managers) 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          establishment or branches or different units in any          establishment  or branch, different persons may  be          nominated  under  this sub-section in  relation  to          different  establishment 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."      Sub-section (4) which begins with a non-obstante clause next provides that 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 the offence and shall be liable to be proceeded against and punished accordingly.      Section  23 of the Act empowers the Central  Government to  make rules.  In exercise of the said power  the  Central Government has framed rules  known as the Prevention of Food Adulteration  Rules, 1955 (hereinafter called ’the  Rules’). Rule 12-B with which we are concerned reads as under;          "Form of nomination of Director of Manager and  his          consent,  under  Section  17-1 (1)  A  company  may          inform   the  Local  (Health)  Authority   of   the          concerned  local area, by notice in  duplicate,  in          Form  VIII containing the name and address  of  the          Director  or Manager, who has been nominated by  it          under  sub-section (2) of section 17 of the Act  to          be in charge of, and                                                       226          responsible  to,the company for the conduct of  the          business  of  the  company  or  any  establishment,          branch or unit thereof :          Provided  that  no such nomination shall  be  valid          unless  the  Director or Manager who  has  been  so          nominated,  gives  his consent in writing  and  has          affixed his signature, in Form VIII in duplicate in          token of such consent.          (2)  The  Local (Health) Authority shall  sign  and          return  one copy of the notice in Form VIII to  the          company  to signify the receipt of  the  nomination          and  retain  the  second copy in  his  office   for          record."      Form VIII is in three parts.  The first part is in  the nature of notice that the company has by a resolution passed at its meeting nominated its named Director/Manager to be in charge  of, and responsible to, the company for the  conduct of    the    business    of    the    said    company     or

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establishment/branch/unit thereof.  A certified copy of  the resolution  has to be sent along with the form.   This  part must  be  signed by the Managing Director/Secretary  of  the Company.   The second part relates to the acceptance of  the nomination   and   must   be   signed   by   the   nominated Director/Manager.   The third part has to be signed  by  the Local  (Health) Authority acknowledging the receipt  of  the nomination.      It  is clear from the plain reading of section 17  that where  an  offence  under the Act is alleged  to  have  been committed by a company, where the company has nominated  any person  to be in charge of, and responsible to, the  company for  the conduct of its business that person will be  liable to  be proceeded against and punished for the commission  of the  offence.   Where,  however,  no  person  has  been   so nominated, every person who at the time of the commission of the  offence  was  in charge of,  and  responsible  to,  the company  for the conduct of its business shall be  proceeded against and punished for the said crime.  Even in such cases the proviso offers a defence, in that, the accused can prove his  innocence  by showing that the  offence  was  committed without  his knowledge and notwithstanding the  exercise  of due diligence to prevent it.  The scheme of sub-section  (1) of section 17 is, therefore, clear that cases where a person has  been nominated under sub-section (2) of section 17,  he alone can be proceeded against and punished for the crime in question.  It is only where on such                                                    227 person has been nominated that every person who at the  time the  offence  was  committed  was  in  charge  of,  and  was responsible to, the company for the conduct of its  business can  be  proceeded  against  and  punished.   The   proviso, however,  lays  down  an  exception  that  any  such  person proceeded  against shall not be liable to be punished if  he proves that the offence was committed without his  knowledge and  that he had exercised all due diligence to prevent  the commission  thereof. Sub-section (2) of section 17  empowers the company to authorise any of its Directors or Managers 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  the Act. It further  empowers the  company to give notice to the Local (Health)  Authority in  the prescribed form that it has nominated a Director  or Manager  as  the person responsible to the company  for  the conduct  of  its  business.  This has to be  done  with  the written consent of the nominated Director or Manager.  Where a company has different establishment or branches or  units, different  persons  may  be nominated  in  relation  to  the different  establishments/ branches/units and the person  so nominated  shall be deemed to be the person  responsible  in respect  of such establishment, branch or unit.  Sub-section (4)  of section 17 overrides the preceding  sub-section  and posits that where an offence has been committed by a company and  it  is proved that the offence was 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, other than the one  nominated,  such Director,  Manager Secretary or other officer shall also  be deemed  guilty  and be liable to be  proceeded  against  and punished for the same. This sub-section,therefore, makes  it clear that notwithstanding the nomination under  sub-section (2) of section 17 and notwithstanding  clause (a)(i) of sub- section (1) of section 17, any Director, Manager,  Secretary or  other officer of the company, other than  the  nominated person, can be proceeded against and punished if it is shown

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that   the  offence  was  committed  with  his  consent   or connivance  or  negligence.  It is crystal  clear  from  the scheme  of section 17 that where a company has committed  an offence  under  the  Act, the person  nominated  under  sub- section  (2)  to be in charge 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                                                    228 person  can also be proceeded against and punished  for  the commission of the said offence.  It is only where no  person has been nominated under sub-section (2) of section 17  that every  person,  who  at the time of the  commission  of  the offence was in charge of and was responsible to the  company for  the  conduct of its business can be  proceeded  against and punished under the law.      In  the instant case it is the contention of  both  the companies,  namely  (i) M/s. Lipton India Limited  and  (ii) M/s.  Hindustan  Lever  Limited   that  they  had  made  the nomination  as required by sub-section (2) of section 17  of the  Act and, therefore, only the nominated person could  be proceeded against and punished since there is no  allegation in the complaints lodged by the Food Inspector to bring  the case  within sub-section (4) of section 17 of the  Act.   If the said two companies can show from the record of the  case that a valid nomination was made prior to the commission  of the alleged offence and the allegations in the complaints do not  attract sub-section (4) of section 17, the  appellants- Director,  Manager and other Officers would be justified  in contending  that  they  cannot  be  proceeded  against    or punished  for the offence alleged to have been committed  by their respective companies.      The  facts  of the present case reveal  that  Mr.  H.D. Dubey,  Food  Inspector, had visited the  godown  of  Lipton India  Limited situate at Panagarh, Jabalpur and had  lifted samples  of  Tree Top Orange Drink in Tetrapacks  and  Dalda Vanaspati Ghee manufactured by the said two companies as  he suspected the said products of the said two companies to  be adulterated.   During  inspection the Food  Inspector  found that the Tree Top Tetrapack carried the date of  manufacture as June 1988 as evidenced  by the label affixed thereto  and since  the date of expiry was stated to be six  months  from the date of manufacture, the product was adulterated as  six months  had  already elapsed on the date of  inspection.  It was,  therefore,  felt that the product  was  misbranded  or adulterated.   Suffice it to say that the samples  collected by the Food Inspector from the said godown were forwarded to the Public Analyst for examination and report as required by law and the Public Analyst reported that samples of all  the three  products, namely, Tree Top Tetrapacks  and  Vanaspati Ghee manufactured by M/s. Lipton India Limited as well as by M/s.  Hindustan Lever Limited were adulterated as  they  did not  conform to the standard prescribed by law.  It  was  on the  receipt  of this report that the Food  Inspector  filed three                                                  229 separate  complaints  against  the company as  well  as  its Directors, Managers and other officers for the commission of offences punishable under section 7/16 read with section  17 of the Act.      The appellants however, contend that since the  company had  made  a nomination as required by  sub-section  (2)  of section  17 of the Act, only the person nominated  could  be

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proceeded against and punished for the alleged offence along with  the  company.  So  far  as  Lipton  India  Limited  is concerned, it is said that it had nominated one H. Dayani by company resolution dated 15th  December, 1988 as the  person too be in charge of, and responsible to, the company for the conduct of its business at its Nagpur branch and  intimation thereof was sent as required by Rule 12B with the consent of the said H. Dayani to the concerned Local (Health) Authority and  hence  the  said H. Dayani  alone  could  be  proceeded against   and  punished,  besides  the  company,   for   the commission  of  the  offence  in question.  A  copy  of  the resolution passed by the Board of Directors of the   company at  its meeting held on 15th December, 1988 was  annexed  to the intimation sent in the prescribed form under Rule 12B of the Rules. M/.s Hindustan Lever Limited contends that it too had nominated one Dr. Nirmal Sen as the person in charge of, and responsible to, the said company for  the conduct of its business  at  the Shamnagar factory and  hence  besides  the company  the  said Dr. Nirmal Sen alone could  be  proceeded against  and punished.  That company also had intimated  the Local (Health) Authority about the nomination of Dr.  Nirmal Sen as the person in charge of, and responsible to, the said company  for  the conduct of its business at  its  shamnagar factory  and  this was duly verified by the  Local  (Health) Authority of Bhatpara Municipality exercising administrative control over the area in which the said factory was situate. As  pointed  out  earlier if the two  companies  succeed  in showing that they had made valid nominations of H.Dayani and Dr.  Nirmal Sen, respectively, and had  duly  intimated  the concerned  Local (Health) Authority about the  same   before the  commission  of the alleged offences, there  can  be  no doubt  that  the case would fall within the  ambit  of  sub- clause (i) of clause (a) of sub-section (1) of section 17 of the  Act  and not under sub-clause (ii) thereof.   It  would then  be necessary for the prosecuting agency to  show  from the  averments  made in the complaint that  the  case  falls within  sub-section  (4) of section 17 of the Act.   If  the prosecuting  agency  fails  to show  that  the  offence  was committed  with the consent or connivance of any  particular Director, Manager, Secretary or other officer of the company                                                230 or on account of the negligence of any one or more of  them, the case set up against the appellants cannot be allowed  to proceed.      It  may at this stage be mentioned that H.  Dayani  has filed  an  affidavit stating that at the material  point  of time  he  was  the Branch Manager of the  Nagpur  Branch  of Lipton  India  Limited and the said branch had a  godown  at Panagarh,  District  Jabalpur,  where  Dalda  Vanaspati   in different  packings and Tree Top Tetrapack were stored,   By the  Board’s  Resolution dated 15th December,  1988  he  was nominated under section 17 (2) of the  Act to be the  person in  charge  of,  and responsible to,  the  company  for  the conduct of its business at Nagpur Branch.  He further states that  as  per Rule 12B, a nomination in Form VIII  was  duly sent  by  the  company to the Local  (Health)  Authority  at Jabalpur and he had signed the said form in token of  having accepted the nomination.  This form, says the deponent,  was duly  received  by the Local (Health)  Authority,  Panagarh, Jabalpur  on 21st February, 1989. Similarly, Dr. Nirmal  Sen has  filed  an  affidavit stating that he  was  the  Factory Manager of the Shamnagar Factory of Hindustan lever  Limited at  the  material  time  and his company  had  a  godown  at Panagarh,  District  Jabalpur,  where  Dalda  Vanaspati   in different  packings was stored.  By the  Board’s  Resolution

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dated 22nd March, 1983 he  was nominated under section 17(2) of  the  Act  to be in charge of, and  responsible  to,  the company  for  the conduct of its business at  the  Shamnagar factory and in that capacity he was entitled to exercise all such powers and  take all such steps as considered necessary or expedient to prevent the commission of any offence  under the Act.  As required by Rule 12B, a nomination in Form VIII was  sent  by his company to the Local  (Health)  Authority, Bhatpara Municipality and he had signed the same in token of having  accepted the nomination made in his favour  on  13th April,  1983. He states that this form was duly received  by the  Local  (Health)  Authority   on  the  same  day.    The aforesaid sworn statements made by H. Dayani and Dr.  Nirmal Sen  were  produced on record to assure the Court  that  the nominated  person  of  the  said  two  companies  own  their responsibilities under the Act pursuant to the nomination.      On  a careful perusal of the complaints lodged  by  the Food Inspector under the Act  it is evident that  intimation regarding  the  nomination in favour of H.  Dayani  and  Dr. Nirmal  Sen  had  been communicated to  the  Food  Inspector before  the complaints came to be lodged.  This  is  evident from  the averments made in the respective complaints.   The nomination                                                        231 was,  however,  not  acted upon by the  complainant  on  the ground that it was incomplete.  It was , therefore, said  in the absence of a valid nomination from the concerned company the  Directors  of the company were liable to  be  proceeded against and punished on proof of the charge levelled against them  in the complaint.  It will thus be seen that there  is no  allegation in the complaint which would bring  the  case within the mischief of section 17 (4) of the Act.  There  is no  allegation  in  the  complaint  that  the  offence   was committed  with  the  consent/connivance/negligence  of  the Directors,  other  than  the  nominated  person,  who   were impleaded  as co-assued.  We are, therefore, satisfied  that the  allegations  in the complaint do not make  out  a  case under sub-section (4) of section 17 of the Act.  That  being so,  the inclusion of the co-accused other than the  company and  the  nominated  person  as the  persons  liable  to  be proceeded against and punished cannot be justified.  As held by  this  Court  in Municipal Corporation of  Delhi  v.  Ram Kishan   Rohtagi  &  Ors.,  [1983]  1  SCR  884  where   the allegations  set out in the complaint do not constitute  any offence,  no  process can be issued against  the  co-accused other than the company and the nominated person and the High Court   would  be  justified  in  exercising  its   inherent jurisdiction  under  section  482 of the  Code  of  Criminal Procedure, 1973 to quash the order passed by the  Magistrate taking cognizance of the offence against such co-accused.      That brings us to the question whether process could be issued  against  such co-accused under  sub-clause  (ii)  of clause  (a)  of sub-section (1) of section 17  of  the  Act. This would depend on the court’s finding whether there was a valid nomination in favour of H. Dayani and Dr. Nirmal  Sen. If there was a valid nomination in existence at the date  of the commission of the offence there can be no doubt that the case would be governed by section 17(1)(a)(i) of the Act and section 17(1)(a)(ii) would not be attracted.  The nomination in  favour  of H. Dayani shows that it was received  by  the Local (Health) Authority on 21st February, 1989 and the same was  signed  by the Health Officer,  Municipal  Corporation, Jabalpur on the same day and a copy thereof was returned  to the  company sometime in March 1989. Although in the  letter of  the Food Inspector dated 21st March, 1989 it was  stated

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that the nomination form could not be accepted as it was not signed by the Local (Health) Authority, no such averment was made   in  the  complaints  subsequently  filed.    In   the complaints all that is said is that the nominations are  not valid  as they are incomplete.  Now during the  pendency  of these appeals the Health Officer has by his letter dated                                                 232 3rd October, 1991 informed as under :          "However,  it is beyond my knowledge that  who  has          cut  Jabalpur  and  written Panagarh  in  place  of          Jabalpur when the nomination was handed over to the          party   the  word  Jabalpur  was  written  on   the          document, Form No. VIII."      A  perusal  of the nomination form of H.  Dayani  shows that  some  word has been scored out and Panagarh  has  been written by its side. However, if it is the contention of the complainant  that this change was subsequently made after  a copy  of the nomination was handed  over to the  party,  the original  document in the possession of the  Health  Officer could   have  been  produced  to  show  that  Panagarh   was subsequently  added for Jabalpur. Even the scored  out  word does not read like Jabalpur.  No where in the complaint  has it  been contended that the document has been tempered  with subsequently.  It is clear from this communication that  the nomination was sent in Form VIII and the same duly  received and   acknowledged   by  the   Health   Officer,   Municipal Corporation, Jabalpur.  It is, however, contended that since of  godown  in  which the offending goods  were  stored  was situate  at  Phutatal (Panagarh)  of  Jabalpur  district,the Local  (Health) Authority was not the Health Officer of  the Jabalpur  Municipality  but the Civil Surgeon or  the  Chief Medical Officer of District Jabalpur.  A notification issued by  the  State Government dated 14th  February,  1983  under clause (viii) of section 2 of the Act has been relied  upon. It  is,  therefore, necessary to inquire into  the  question whether  the nomination of H. Dayani was sent  to,  received and acknowledged by the competent Local (Health) Authority.      The  nomination  form  pertaining  to  Hindustan  Lever Limited  is dated 30the March, 1983 in favour of Dr.  Nirmal Sen,  Factory Manager of the Shamnagar unit of the  company. Dr.  Nirmal Sen has signed that form on 13th   April,  1983. It   appears  to  have  been  counter-signed  by  the   Food Inspector,  Bhatpara Muncipality.  It is,  therefore,  not clear if it has been signed by the competent Local  (Health) Authority  of  the area in which the godown from  which  the offending goods were recovered was situated.  This too is  a matter which needs investigation.      In  the result, the appeals are allowed.  The order  of the learned Magistrate as well as the impugned order of  the High  Court are set aside.  The Matters are remanded to  the learned trial magistrate with a direction                                                   233 to  inquire into the question whether the  nomination  forms nominating  H. Dayani and Dr. Nirmal Sen were  received  and acknowledged  by the Local (Health) Authority  competent  to receive  and  acknowledge the same.  This question  will  be considered  as  a  preliminary  question  and  the   learned magistrate  will record a finding thereon .  If he comes  to the   conclusion   that  the  nomination  forms   had   been acknowledged  by the  competent Local (Health) Authority  he shall  drop  the proceedings against the  Directors  of  the company, other than the company and the nominated persons. If  on  the other hand he comes to the conclusion  that  the prescribed  forms  had been acknowledged by a  person  other than the competent Local (Health) Authority he will  proceed

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against all the persons who are shown as the accused in  the complaint  i.e. all the  Directors including  the  nominated person   and   the  company.   The   appeals   are   allowed accordingly. G.N.                                       Appeals allowed.                                                    234