HINDUSTAN UNILEVER LIMITEDversusTHE STATE OF MADHYA PRADESH

                         [2020] 9 S.C.R. 455                               455


               HINDUSTAN UNILEVER LIMITED                                  A
                                   v.
               THE STATE OF MADHYA PRADESH
                  (Criminal Appeal No. 715 of 2020)
                        NOVEMBER 05, 2020                                  B
       [L. NAGESWARA RAO, HEMANT GUPTA AND
                       AJAY RASTOGI, JJ.]
       Prevention of Food Adulteration Act, 1954 – s.17 – Food
Safety and Standards Act, 2006 – s.97 – General Clauses Act, 1897          C
– s.6 – A complaint was filed by inspector of Food and Health on
the basis of a sample taken on 07.02.1989 in respect of Dalda
Vanaspati Khajoor Brand Ghee manufactured by the Company –
The said proceeding was decided by the Supreme Court in R. Banerjee
& Ors. v. H.D. Dubey & Ors., wherein the matter was remanded
                                                                           D
back to the trial Magistrate to inquire into the question whether the
nomination forms nominating appellant and one another person
were received and acknowledged by the Local (Health) Authority –
In terms of the said directions, the trial Court passed an order
absolving the directors of the Company and prosecution was ordered
to continue against the appellant/nominated officer – Thereafter,          E
the trial Court in 2015, convicted the appellant under various
provisions of the 1954 Act – There was no order passed by the trial
Court to convict the Company of any offence – In an appeal, the
Additional Sessions Judge affirmed the conviction of the appellant
– However, the High Court in its order noticed that if the Company
                                                                           F
is acquitted of the charges, the said benefit will also directly go to
the appellant – Thus, the conviction and sentence passed against
the appellant, being a nominated person of the Company was set
aside and the matter was remitted back to the trial Court for passing
the fresh judgment – Before the Supreme Court, the appellant sought
benefit under the Food Safety and Standards Act, 2006 which came           G
after the Prevention of Food Adulteration Act, 1954 was repealed –
Held: In the 2006 Act, the repeal and saving clause contained in
s.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
                                                                           H
                                  455
456            SUPREME COURT REPORTS                       [2020] 9 S.C.R.


A     if the 2006 Act had not been passed” – Thus, in view of s.97 of the
      2006 Act, as also u/s.6 of the General Clauses Act, 1897, the
      proceedings would continue under the 1954 Act – No benefit can
      be taken under the 2006 Act as the prosecution and punishment
      under the 1954 Act is protected – As far as the course adopted by
      the High Court to remand the matter to the trial Court is concerned,
B
      there is no material distinction between s.141 of the Negotiable
      Instruments Act, 1882 and s.17 of the 1954 Act which makes the
      companies as well as the nominated person to be held guilty of the
      offences and/or liable to be proceeded and punished accordingly –
      Clauses (a) and (b) of s.17 are not in alternative but in conjoint –
C     Therefore, in the absence of the Company, the nominated person
      cannot be convicted or vice-versa – Since the Company was not
      convicted by the trial Court, the finding of the High Court to revisit
      the judgment will be unfair to the appellant/nominated person who
      has been facing trial for more than last 30 years – The failure of
      the trial Court to convict the Company renders the entire conviction
D
      of the nominated person as unsustainable – Thus, the order passed
      by the High Court is set aside.
             Allowing the appeals, the Court
             HELD: 1. In terms of Section 6 of the General Clauses
      Act, 1897, unless a different intention appears, the repeal of a
E
      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
F     as if the Repealing Act or Regulation had not been passed. But
      in the Food Safety and Standards Act, 2006, 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
G
      passed”. [Para 15][465-E-G]
             2. Thus, in view of Section 97 of the 2006 Act, as also under
      Section 6 of the General Clauses Act, 1897, the proceedings
      would continue under the Act. No benefit can be taken under the
      2006 Act as the prosecution and punishment under the Act is
H     protected. [Para 17][466-C-D]
     HINDUSTAN UNILEVER LIMITED v. THE STATE OF                           457
                 MADHYA PRADESH

      3. The question now narrows down as to whether the course           A
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. [Para
19][468-F]
       4. Clause (a) of Sub-Section (1) of Section 17 of the              B
Prevention of Food Adulteration Act, 1954 makes the person
nominated to be in charge of and responsible to the company for
the conduct of business and the company shall be guilty of the
offences under clause (b) of Sub-Section (1) of Section 17 of the
Act. Therefore, there is no material distinction between Section
141 of the NI Act and Section 17 of the Act which makes the               C
Company as well as the Nominated Person to be held guilty of
the offences and/or liable to be proceeded and punished
accordingly. Clauses (a) and (b) are not in the alternative but
conjoint. Therefore, in the absence of the Company, the
Nominated Person cannot be convicted or vice versa. Since the             D
Company was not convicted by the trial court, this Court finds
that the finding of the High Court to revisit the judgment will be
unfair to the appellant/Nominated Person who has been facing
trial for more than last 30 years. Therefore, the order of remand
to the trial court to fill up the lacuna is not a fair option exercised
by the High Court as the failure of the trial court to convict the        E
Company renders the entire conviction of the Nominated Person
as unsustainable. [Para 22][471-A-D]
      State of Punjab v. Mohar Singh AIR 1955 SC 84 :
      [1955] 1 SCR 893; Tiwari Kanhaiyalal & Ors. v.
      Commissioner of Income Tax, Delhi (1975) 4 SCC 101                  F
      : [1975] 3 SCR 927; Aneeta Hada v. Godfather Travels
      & Tours Private Limited (2012) 5 SCC 661 : [2012] 5
      SCR 503 – relied on.
      R. Banerjee & Ors. v. H.D. Dubey & Ors. (1992) 2
      SCC 552 : [1992] 2 SCR 221; Nemi Chand v. State of                  G
      Rajasthan (2018) 17 SCC 448; T. Barai v. Henry Ah
      Hoe & Anr. (1983) 1 SCC 177 : [1983] 1 SCR 905;
      Trilok Chand v. State of Himachal Pradesh (2020) 10
      SCC 763 – referred to.
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458                SUPREME COURT REPORTS                          [2020] 9 S.C.R.


A                                   Case Law Reference
      [1992] 2 SCR 221                            referred to         Para 2
      (2018) 17 SCC 448                           referred to         Para 8
      [1983] 1 SCR 905                            referred to         Para 11
B     (2020) 10 SCC 763                           referred to         Para 11
      [1955] 1 SCR 893                            relied on           Para 15
      [1975] 3 SCR 927                            relied on           Para 16
      [2012] 5 SCR 503                            relied on           Para 20
C
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      715 of 2020.
           From the Judgment and Order dated 09.01.2020 of the High Court
      of Madhya Pradesh at Jabalpur in Criminal Revision No. 37 of 2020.
D               With
                Criminal Appeal No. 716 of 2020
             Dr Abhishek Manu Singhvi, Siddharth Luthra, Sr. Advs, Ms. Priya
      Puri, Vibhav Srivastava, Ranjay Dubey, Yati Sharma, Ms. Supriya Juneja,
      Aditya Singla, Harsh Yadav, Ms. Ankita Tiwari, Arjun Garg, Abhijeet
E     Shrivastava, Ms. Shrutika Garg, Advs. for the appearing parties.
                The Judgment of the Court was delivered by
                HEMANT GUPTA, J.
             1. The challenge in the present appeals is to an order passed by
F     the High Court of Madhya Pradesh, Jabalpur on 9.1.2020 whereby the
      revision filed by Shri Nirmal Sen, appellant/Nominated Officer (Incharge)
      of the Hindustan Unilever Limited1, was allowed, however the matter
      was remitted back to the trial court to revisit the evidence adduced by
      both the parties, so far it relates to the appellants, Nirmal Sen and the
      Company. The operative part of the order reads thus:
G
                “8. If the company-Hindustan Lever Limited is acquitted of the
                charges, the said benefit will also directly go to the applicant. In
                view whereof, this Court finds a glaring and patent defect in the
                judgment of the trial Court as well as in the judgment of the
      1
H         Hereinafter referred to as “Company”.
         HINDUSTAN UNILEVER LIMITED v. THE STATE OF                                459
             MADHYA PRADESH [HEMANT GUPTA, J.]

          appellate Court, thus, this Court, in these premises, finds it fit to    A
          interfere in the judgment of the trial Court in exercise of the
          revisional jurisdiction under Section 401(1) of Cr.P.C., 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
                                                                                   B
          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     C
          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       D
          and this Court.”
       2. Brief facts leading to the present appeals are that a complaint
was filed by Shri H.D. Dubey, Inspector, Food and Health, on the basis
of a sample taken on 7.2.1989 in respect of Dalda Vanaspati Khajoor
Brand Ghee manufactured by the Company, in terms of the provisions                 E
of The Prevention of Food Adulteration Act, 19542. The sample of
Vanaspati Ghee was taken from the godown of Lipton India Limited
which was found to be adulterated as the melting point was found to be
41.8 degree centigrade which is higher than the normal range i.e. as
against 31-41 degree centigrade. Initially, the complaint was filed against
the Directors of the Company as well as that of Lipton India Limited.              F
However, the said proceedings came to be decided by this Court in a
judgment reported as R. Banerjee & Ors. v. H.D. Dubey & Ors.3
wherein it was held as under:
          “12. In the result, the appeals are allowed. The order of the learned
          Magistrate as well as the impugned order of the High Court are           G
          set aside. The matters are remanded to the learned trial Magistrate
          with a direction to inquire into the question whether the nomination
          forms nominating H. Dayani and Dr Nirmal Sen were received
2
    For short, the ‘1954 Act’
3
    (1992) 2 SCC 552                                                               H
460                 SUPREME COURT REPORTS                         [2020] 9 S.C.R.


A               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
B
                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
C               complaint i.e. all the Directors including the nominated person
                and the company. The appeals are allowed accordingly.”
             3. In terms of the directions of this Court, it appears that the
      learned trial court passed an order on 6.7.1993 absolving the Directors
      of the Company and the prosecution was ordered to continue against
D     the appellant Nirmal Sen. The said order is not on record but it appears
      that no proceedings were continued against the Company inasmuch as it
      has four accused, namely, Lipton 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
E     Act, 20064 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
F               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
G               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



      4
H         For short, the ‘2006 Act’
        HINDUSTAN UNILEVER LIMITED v. THE STATE OF                            461
            MADHYA PRADESH [HEMANT GUPTA, J.]

         Act, the details were not even duly marked, which comes under        A
         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 2(1G)(K) r/w Section 32(F)/7(i)/16(A)(i) and Section
         2(ia)(m) r/w 7(i)/16(1)/(a)(i) of Food Adulteration Act, 1954 and    B
         Food Adulteration and Prevention Act under Section 14 r/w Rule
         2(A) r/w Section 7(v)/16(1C).”
       6. A complete reading of the order passed by the trial court does
not lead to an inference that the Company was represented at any stage
during the course of trial. It is to be noted that in the aforementioned      C
judgment, there was no order passed by the learned trial court to convict
the appellant-Company of any offence. The appellant Nirmal Sen
contested the proceedings and was convicted by the trial court.
      7. In an appeal against the said judgment, the learned Additional
Sessions Judge held that the prosecution was found to be maintainable         D
against Rathore Clearing and Forwarding Agency and the Company but
the same was not mentioned in the impugned judgment and order. The
Court held as under:
         “31. ….As per order dated 6.7.1993, the Hindustan Lever Limited
         also has been held accused, but erroneously, it could not have       E
         been mentioned in the impugned judgment and order. As per law,
         any company is a legal personality and it cannot be undergo
         imprisonment sentence. The appellant Nirmal Sen being the
         nominee for the offence of the aforesaid company, has been
         punished. In such situation, the appellant does not seem to be       F
         entitled for get any benefit only on the mere technical grounds.”
       8. The learned counsel for the appellant placed reliance on the
judgment of this Court reported as Nemi Chand v. State of Rajasthan5
before the learned Additional Sessions Judge, in support of the argument
that pursuant to the repeal of the Act, only punishment of fine has been
                                                                              G
contemplated under the 2006 Act. Thus, since the provisions of the 2006
Act are beneficial to the accused, the accused is entitled to such benefits
provided by the 2006 Act. It was found that the decision in Nemi Chand
has been passed in exercise of the jurisdiction conferred on the
5
    (2018) 17 SCC 448
                                                                              H
462            SUPREME COURT REPORTS                            [2020] 9 S.C.R.


A     constitutional courts, but the First Appellate Court does not have any
      such specific constitutional power. The Court rejected the applicability
      of the 2006 Act as the punishments imposed under the repealed Act
      have been saved by Section 97 of the 2006 Act. The Court held as
      under:
B           “39. There is no doubt in it that as a result of amendment made by
            the post facto laws, if the sentence given for any offence 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,
C           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
D           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
E           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 offence,
            the sentence awarded to the appellant Nirmal Sen by the Ld.
F           Subordinate Court in the case seems in accordance with law and
            of appropriate and no need to interfere in it does not seem.”
             9. With the aforesaid discussion, the learned Additional Sessions
      Judge affirmed the conviction of the appellant/Nominated Officer but
      the conviction of the accused Harish Dayani and Mohd. Saleem was set
G     aside and they were acquitted.
             10. The High Court in its order noticed that if the Company is
      acquitted of the charges, the said benefit will also directly go to the
      appellant/Nominated Officer. A glaring and patent defect in the judgment
      of the trial court as well as in the judgment of the appellate court was
H
      HINDUSTAN UNILEVER LIMITED v. THE STATE OF                              463
          MADHYA PRADESH [HEMANT GUPTA, J.]

observed by the High Court. Thus, the conviction and sentence passed          A
against the appellant, being a nominated person of the Company, was
set aside and the matter was remitted back to the trial Court for passing
fresh judgment.
       11. Before this Court, two-fold arguments were raised by the
learned counsels for the appellants. Dr. Abhishek Manu Singhvi, learned       B
senior counsel appearing on behalf of the appellant/Nominated Officer
argued that the appellant was charged for the violation of Section 2(ia)(m)
read with Section 7(i) of the Act. Such violation attracted a sentence of
not less than six months and up to 3 years and a fine of Rs.1,000/- under
Section 16(1)(a)(i), whereas under the 2006 Act, the punishment of such
adulteration which is related to only higher melting point is fine of Rs.5    C
lakhs and Rs.1 lakh under Sections 3(1)(zx) and 3(1)(i) respectively.
The reliance is placed upon judgments of this Court in T. Barai v. Henry
Ah Hoe & Anr.6, Nemi Chand and Trilok Chand v. State of Himachal
Pradesh7.
        12. Mr. Siddharth Luthra, learned senior counsel for the appellant-   D
Company raised an argument that the Company was not convicted by
the trial court. Therefore, the High Court in revision could not have
passed an order of retrial, more so when the Company was not given
any notice of being heard. Since there was no order of conviction by the
trial court, as also no opportunity of hearing was given, such order is in    E
contravention of sub-section (2) of Section 401 of the Code of Criminal
Procedure, 19738. Section 401 (2) of the Code reads thus:
       “401(2). No order under 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.”    F
       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             G
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.

6
  (1983) 1 SCC 177
7
  Criminal Appeal No. 1831 of 2010 decided on 1.10.2019
8
  For short, the ‘Code’                                                       H
464            SUPREME COURT REPORTS                            [2020] 9 S.C.R.


A     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
B           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
            repeal or anything duly done or suffered thereunder; or
C
            (ii) any right, privilege, obligation or liability acquired, accrued or
            incurred under any of the enactment or orders under repeal; or


            (iii) any penalty, forfeiture or punishment incurred in respect
D           of any offences committed against the enactment and orders
            under repeal; or
            (iv) any investigation or remedy in respect of any such penalty,
            forfeiture or punishment,
            and any such investigation, legal proceedings or remedy may
E           be instituted, continued or enforced and any such penalty,
            forfeiture or punishment may be imposed, as if this Act had
            not been passed:
            (2) If there is any other law for the time being in force in any
            State, corresponding to this Act, the same shall upon the
F           commencement of this Act, stand repealed and in such case, the
            provisions of Section 6 of the General Clauses Act, 1897 (10 of
            1897) shall apply as if such provisions of the State law had been
            repealed.
            (3) Notwithstanding the repeal of the aforesaid enactment and
G           orders, the licences issued under any such enactment or order,
            which are in force on the date of commencement of this Act,
            shall continue to be in force till the date of their expiry for all
            purposes, as if they had been issued under the provisions of this
            Act or the rules or regulations made thereunder.
H
        HINDUSTAN UNILEVER LIMITED v. THE STATE OF                                  465
            MADHYA PRADESH [HEMANT GUPTA, J.]

         (4) Notwithstanding anything contained in any other law for the            A
         time being in force, no court shall take cognizance of an offence
         under the repealed Act or orders after the expiry of a period of
         three years from the date of the commencement of this Act.”
         (Emphasis Supplied)
      14. Section 6 of the General Clauses Act, 1897 provides the effect            B
of repeal as under:
         “Where this Act or any Central Act or Regulation made after the
         commencement of this act repeals any enactment hitherto made
         or hereafter to be made, then, unless a different intention appears,
         the repeal shall not-                                                      C
         (e) 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        D
         or punishment may be imposed as if the Repealing Act or
         Regulation had not been passed.”
        15. In terms of Section 6 of the General Clauses Act, 1897, unless
different intention appears, the repeal of a statute does not affect any
investigation, legal proceeding or remedy in respect of any such right,             E
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               F
(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 Singh9,wherein                   G
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:

9
    AIR 1955 SC 84
                                                                                    H
466      SUPREME COURT REPORTS                            [2020] 9 S.C.R.


A     “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
      obliterate it as completely from the records of Parliament as if it
      had never been passed, except for the purpose of those actions,
      which were commenced, prosecuted and concluded while it was
      an existing law [Vide Craies on Statute Law, 5th edn, p. 323] . A
B
      repeal therefore without any saving clause would destroy any
      proceeding whether not yet begun or whether pending at the time
      of the enactment of the Repealing Act and not already prosecuted
      to a final judgment so as to create a vested right [ Vide Crawford
      on Statutory Construction, p. 599-600w]. To obviate such results
C     a practice came into existence in England to insert a saving clause
      in the repealing statute with a view to preserve rights and liabilities
      already accrued or incurred under the repealed enactment. Later
      on, to dispense with the necessity of having to insert a saving
      clause on each occasion, Section 38(2) was inserted in the
      Interpretation Act of 1889 which provides that a repeal, unless
D
      the contrary intention appears, does not affect the previous
      operation of the repealed enactment or anything duly done or
      suffered under it and any investigation, legal proceeding or remedy
      may be instituted, continued or enforced in respect of any right,
      liability and penalty under the repealed Act as if the Repealing
E     Act had not been passed. Section 6 of the General Clauses Act,
      as is well known, is on the same lines as Section 38(2) of the
      Interpretation Act of England.
      9. The offence committed by the respondent consisted in filing a
      false claim. The claim was filed in accordance with the provision
F     of Section 4 of the Ordinance and under Section 7 of the
      Ordinance, any false information in regard to a claim was a
      punishable offence. The High Court is certainly right in holding
      that Section 11 of the Act does not make the claim filed under the
      Ordinance a claim under the Act so as to attract the operation of
      Section 7. Section 11 of the Act is in the following terms:
G
         “The East Punjab Refugees (Registration of Land Claims)
         Ordinance 7 of 1948 is hereby repealed and any rules made,
         notifications issued, anything done, any action taken in exercise
         of the powers conferred by or under the said Ordinance shall
         be deemed to have been made, issued, done or taken in exercise
H
         HINDUSTAN UNILEVER LIMITED v. THE STATE OF                             467
             MADHYA PRADESH [HEMANT GUPTA, J.]

             of the powers conferred by, or under this Act as if this Act had   A
             come into force on 3rd day of March, 1948”.
             ……………….The truth or falsity 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        B
             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        C
             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       D
             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
             intention which is inconsistent with the continuance of rights     E
             and liabilities accrued or incurred under the Ordinance and in
             our opinion this question has to be answered in the negative.”
       16. In another judgment reported as Tiwari Kanhaiyalal & Ors.
v. Commissioner of Income Tax, Delhi 10, the assessments were
completed under the Income Tax Act, 1922 after the Income Tax Act,              F
1961 came into force. There was search on the premises of the assessee.
The revised returns were filed after the Income Tax Act, 1961 came
into force. The penalty proceedings were initiated and it was levied under
the 1961 Act. Later, the complaints were filed alleging commission of
the offences under Section 277 of 1961 Act. Another set of complaints           G
were filed under the Income Tax Act, 1922. This Court held that the
complaints under the 1922 Act remains unaffected. It was held as under:
          “7. It is advisable to discuss and dispose of a new point which
          arose during the hearing of these appeals. Sub-section (1) of
10
     (1975) 4 SCC 101                                                           H
468                 SUPREME COURT REPORTS                        [2020] 9 S.C.R.


A               Section 297 of the 1961 Act repealed the 1922 Act including Section
                52. In sub-section (2) no saving seems to have been provided for
                the launching of the prosecution under the repealed Section 52 of
                the 1922 Act. It does not seem correct to take recourse to clause
                (h) of Section 297(2) to make the offences come under Section
                277 of the 1961 Act as was endeavoured to be done by the
B
                respondent in the first 12 complaint petitions. But then from no
                clause under sub-section (2) a different intention appears in this
                regard from what has been said in Section 6 of the General Clauses
                Act. On the facts alleged the criminal liability incurred under
                Section 52 of the 1922 Act remains unaffected under clause (c)
C               of Section 6 of the General Clauses Act….”
             17. Thus, in view of Section 97 of the 2006 Act, as also under
      Section 6 of the General Clauses Act, 1897, the proceedings would
      continue under the Act. No benefit can be taken under the 2006 Act as
      the prosecution and punishment under the Act is protected.
D           18. The judgment of this Court in Trilok Chand is the only
      judgment which has given benefit of the 2006 Act and the sentence was
      imposed by imposing a fine of Rs.5,000/-. The attention of the Court
      was not drawn to Section 97 of the 2006 Act, which protects the
      punishments given under the repealed Act. Therefore, the order in Trilok
E     Chand is on its own facts.
             19. However, 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
F     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.
G     Godfather Travels & Tours Private Limited11 considered the question
      of conviction of the Directors in the absence of the Company in
      proceedings under Section 138 of the Negotiable Instruments Act, 188112
      as also in the proceedings under Information Technology Act, 2000. This
      11
           (2012) 5 SCC 661
      12
H          For short, the ‘NI Act’
     HINDUSTAN UNILEVER LIMITED v. THE STATE OF                                 469
         MADHYA PRADESH [HEMANT GUPTA, J.]

Court held that Section 141 of the NI Act dealing with offences by              A
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 deemed to be guilty of the offence and shall be liable to be
proceeded against and punished accordingly. This Court, considering
                                                                                B
the said provision, held as under:
      “38. From the aforesaid pronouncements, the principle that can
      be culled out is that it is the bounden duty of the court to ascertain
      for what purpose the legal fiction has been created. It is also the
      duty of the court to imagine the fiction with all real consequences
      and instances unless prohibited from doing so. That apart, the use        C
      of the term “deemed” has to be read in its context and further, the
      fullest logical purpose and import are to be understood. It is because
      in modern legislation, the term “deemed” has been used for
      manifold purposes. The object of the legislature has to be kept in
      mind.                                                                     D
      xx                          xx                          xx
      56. We have referred to the aforesaid passages only to highlight
      that there has to be strict observance of the provisions regard
      being had to the legislative intendment because it deals with penal
      provisions and a penalty is not to be imposed affecting the rights        E
      of persons, whether juristic entities or individuals, unless they are
      arrayed as accused. It is to be kept in mind that the power of
      punishment is vested in the legislature and that is absolute in Section
      141 of the Act which clearly speaks of commission of offence by
      the company. The learned counsel for the respondents have                 F
      vehemently urged that the use of the term “as well as” in the
      section is of immense significance and, in its tentacle, it brings in
      the company as well as the Director and/or other officers who
      are responsible for the acts of the company and, therefore, a
      prosecution against the Directors or other officers is tenable even
      if the company is not arraigned as an accused. The words “as              G
      well as” have to be understood in the context.
                xx                         xx                          xx
      58. Applying the doctrine of strict construction, we are of the
      considered opinion that commission of offence by the company is
                                                                                H
470      SUPREME COURT REPORTS                            [2020] 9 S.C.R.


A     an express condition precedent to attract the vicarious liability of
      others. Thus, the words “as well as the company” appearing in
      the section make it absolutely unmistakably clear that when the
      company can be prosecuted, then only the persons mentioned in
      the other categories could be vicariously liable for the offence
      subject to the averments in the petition and proof thereof. One
B
      cannot be oblivious of the fact that the company is a juristic person
      and it has its own respectability. If a finding is recorded against it,
      it would create a concavity in its reputation. There can be situations
      when the corporate reputation is affected when a Director is
      indicted.
C     59. In view of our aforesaid analysis, we arrive at the irresistible
      conclusion that for maintaining the prosecution under Section 141
      of the Act, arraigning of a company as an accused is imperative.
      ……….”
      21. Section 17 of the Act reads as under:
D
      “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
E     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
F     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
G     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.
      (2) ****                                       *****”
H
      HINDUSTAN UNILEVER LIMITED v. THE STATE OF                                 471
          MADHYA PRADESH [HEMANT GUPTA, J.]

       22. Clause (a) of Sub-Section (1) of Section 17 of the Act makes          A
the person nominated to be in charge of and responsible to the company
for the conduct of business and the company shall be guilty of the offences
under clause (b) of Sub-Section (1) of Section 17 of the Act. Therefore,
there is no material distinction between Section 141 of the NI Act and
Section 17 of the Act which makes the Company as well as the Nominated
                                                                                 B
Person to be held guilty of the offences and/or liable to be proceeded
and punished accordingly. Clauses (a) and (b) are not in the alternative
but conjoint. Therefore, in the absence of the Company, the Nominated
Person cannot be convicted or vice versa. Since the Company was not
convicted by the trial court, we find that the finding of the High Court to
revisit the judgment will be unfair to the appellant/Nominated Person            C
who has been facing trial for more than last 30 years. Therefore, the
order of remand to the trial court to fill up the lacuna is not a fair option
exercised by the High Court as the failure of the trial court to convict the
Company renders the entire conviction of the Nominated Person as
unsustainable.
                                                                                 D
      23. In view of the above, the appeals are allowed and the order
passed by the High Court is set aside. Resultantly the complaint is
dismissed.


Ankit Gyan                                                    Appeals allowed.   E




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                                                                                 G




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