TaxTMI 
TaxTMI 
2020 (11) TMI 1021
X X X X Extracts X X X X
X X X X Extracts X X X X
.... as in the judgment of the appellate Court, thus, this Court, in these premises, finds it fit to interfere in the judgment of the trial Court in exercise of the revisional jurisdiction Under Section 401(1) of Code of Criminal Procedure, hence, this Court is inclined to set aside the conviction and sentence passed against the applicant being a nominated person of the company and remitted back the matter to the trial Court for passing fresh judgment considering the company-Hindustan Lever Limited that had already been arrayed as an Accused along with the applicant. 9. In view of aforesaid discussions, this revision is allowed. The impugned conviction and sentence passed against the applicant is hereby set aside and the matter is remitted back to the trial Court to revisit the evidence adduced by both the parties and also revisit its judgment dated 16/06/2015, so far as it relates with the applicant and company-Hindustan Lever Limited thereafter again pass a separate judgment after providing opportunity of hearing to the applicant as well as the company-Hindustan Lever Limited without getting prejudice with the discussions made by the appellate Court and this Court. 2. Brief facts l....
X X X X Extracts X X X X
X X X X Extracts X X X X
....India Limited, Mohd. Saleem, Harish Dayani and Nirmal Sen were arrayed as accused. 4. The Act was then repealed and the Food Safety and Standards Act, 2006 For short, the '2006 Act' came into force on 23.8.2006. 5. The learned trial court vide judgment dated 16.6.2015 convicted the Appellant/Nominated Officer under various provisions of the 1954 Act. The learned trial court held as under: 58. That on the basis of the above complete evidence analysis, it is certified that on the day of the incident, the Accused Dr. Nirmal Sen was a nominee of Hindustan Limited Company and the goods of the said company were given to the palm plantation oil vanaspati from Godown Rathore Clearing and Forwarding Agency, Panagar, Jabalpur, Mohd. Salim. Sale of Vanaspati by Hindustan Liver Limited to the complainant food inspector H.D. Dubey went to purchase there. At the time when the said product was sold, the adulteration was came in light, and according to Rule 32(f) of the Act, the details were not even duly marked, which comes under the category of false impression in print of the packet or pouch. xx xx xx 60. Therefore, the Accused Dr. Nirmal Sen was found to be guilty Under Section....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce is lessened or rejected then the Accused is entitled to get benefit of it Under Article 20 of the Constitution of India. But is also mentionable that the Accused has been prosecuted and sentenced under the "Act" of 1954 in the matter under consideration and in place of it, the Food Safety and Standard Act, 2006 has been implemented since 24.08.2006. By Section 97(1) of this new Act, the Act of 1954 has been repealed but it also has been provided that action could be kept continued under the repealed Act and any such penalty, confiscation or punishment could be charged like it that as if this Act be not passed. 40. Thus, with regard to the offence occurred before the date of implementation of the new Act, the provisions of the "Act" of 1954 have applicability and it cannot be held the punishment has been lessened by amending in the offence Under Section 16 of the old Act by the new Act. It seems from the records that the case has remained pending for several years before the Ld. Trial Court but several Stays submitted by the Accused persons are also responsible for this delay and on this ground, they are not entitled for any sympathy. Keeping in view to the gravity of the offen....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... this Section shall be made to the prejudice of the Accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. 13. We do not find any merit in the arguments raised by Dr. Singhvi with respect to the punishment provided under the 2006 Act. The judgment of this Court in T. Barai is consequent to amendment in the Act when Section 16A was inserted by the Parliament. Similarly, the judgment in Nemi Chand was a judgment arising out of the amendment in the Act only. The benefit of amendments in the Act, has been rightly granted to the Accused in an appeal arising out of the proceedings under the Act. But in the present case, the Act has been repealed by Section 97 of the 2006 Act, however, the punishments imposed under the Act have been protected. Section 97 of the 2006 Act, which came into force on 5.8.2011, is as follows: 97. Repeal and savings.--(1) With effect from such date as the Central Government may appoint in this behalf, the enactment and orders specified in the Second Schedule shall stand repealed: Provided that such repeal shall not affect:- (i) the previous operations of the enactment and orders under re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f a statute does not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act or Regulation had not been passed. But in the 2006 Act, the repeal and saving Clause contained in Section 97(1)(iii) and (iv) specifically provides that repeal of the Act shall not affect any investigation or remedy in respect of any such penalty, forfeiture or punishment and the punishment may be imposed, "as if the 2006 Act had not been passed". The question as to whether penalty or prosecution can continue or be initiated under the repealed provisions has been examined by this Court in State of Punjab v. Mohar Singh AIR 1955 SC 84, wherein this Court examined Section 6 of the General Clauses Act which is on lines of Section 38(2) of the Interpretation Act of England. It was held as under: 6. Under the law of England, as it stood prior to the Interpretation Act of 1889, the effect of repealing a statute was said to be to oblitera....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ty of the claim has to be investigated in the usual way and if it is found that the information given by the claimant is false, he can certainly be punished in the manner laid down in Sections 7 and 8 of the Act. If we are to hold that the penal provisions contained in the Act cannot be attracted in case of a claim filed under the Ordinance, the results will be anomalous and even if on the strength of a false claim a refugee has succeeded in getting an allotment in his favour, such allotment could not be cancelled Under Section 8 of the Act. We think that the provisions of Sections 47 and 8 make it apparent that it was not the intention of the Legislature that the rights and liabilities in respect of claims filed under the Ordinance shall be extinguished on the passing of the Act, and this is sufficient for holding that the present case would attract the operation of Section 6 of the General Clauses Act. It may be pointed out that Section 11 of the Act is somewhat clumsily worded and it does not make use of expressions which are generally used in saving clauses appended to repealing statutes; but as has been said above the point for our consideration is whether the Act evinces an i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....wever, we find merit in the argument of Mr. Luthra that the order of remand by the High Court to the trial court against the Company cannot be sustained for the reason that such an order was passed without giving an opportunity of hearing, as contemplated Under Section 401(2) of the Code. The question thus now narrows down as to whether the course adopted by the High Court to remand the matter to the trial court after more than 30 years to cure the defect which goes to the root of the trial, though permissible in law, is justified. 20. A three-Judge Bench of this Court in Aneeta Hada v. Godfather Travels & Tours Private Limited (2012) 5 SCC 661 considered the question of conviction of the Directors in the absence of the Company in proceedings Under Section 138 of the Negotiable Instruments Act, 1881 For short, the 'NI Act' as also in the proceedings under Information Technology Act, 2000. This Court held that Section 141 of the NI Act dealing with offences by companies contemplates 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 the business of the company, as well as the company, shall be....