The main legal point established in the judgment is that specific and clear averments regarding the role and responsibilities of the accused in the commission of the offence are necessary to establish vicarious liability under Section 34 of the Drugs and Cosmetics Act.

ORDER :

Petitioners are before this Court calling in question proceedings in Special C.C.No.154 of 2020 pending before the Principal City Civil and Sessions Judge at Bangalore arising out of complaint filed under Section 200 of the Cr.P.C. for violation of Sections 18(a)(i) and 22(i)(cca) punishable under Section 27(a) and 22(3) of the Drugs and Cosmetics Act, 1940 (‘the Act’ for short).

2. Heard Sri. Desu Reddy G., learned Counsel for petitioners and Smt. K.P.Yashodha, learned High Court Government Pleader for respondent.

3. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:-

It appears that on 12-07-2020 information was received by the Assistant Drugs Controller from the Superintendent of Minto Hospital, Bengaluru alleging that cataract surgeries had been carried out at the Hospital on 9-07-2019 and the patients who underwent cataract surgeries had developed eye infection. The said information was taken by the Assistant Drugs Controller and visited the hospital to investigate the matter. One Dr. K.M. Dakshayini hands over a letter to the respondent mentioning names of drugs which were used during cataract surgeries and also informed that consumables and drugs that were used in the cataract surgeries were sent to gram stain, culture sensitivity to microbiology laboratory and culture sensitivity report was given by the Department of microbiology, Victoria Hospital on 12.07.2019 which yielded pseudomonas aueroginosa growth in drug Hydroxypropyl Methylcellulose Ophthalmic Solution USP (OCCUGEL 2%) Batch No.OUV190203 date of Mfg.Feb.2019 Date of Exp. Jan.2021 manufactured by M/s Ophtechnics Unlimited.

4. It is after the report that was received and finding that the subject drug was not of standard quality, proceedings were instituted against the petitioners and several other accused for offences punishable under Section 27(a) of the Act for alleged violation of Section 18(a)(i) of the Act. The petitioners 1 and 2 are Proprietors/Directors of the 3rd petitioner M/s.Unicorn Meditech, the manufacturer of the subject drug and other drugs.

5. Alleging violation of Section 18(a)(i) of the Act which becomes punishable under Section 27(a) of the Act, a complaint is registered by the respondents invoking Section 200 of the Cr.P.C. The complaint, though is at great length, does not indicate the role of the petitioners to be in the day-to-day affairs of manufacturing of drugs in the company. Unless this is spelt out, the offences against the petitioners cannot be driven home, is the consistent view taken by this Court in plethora of judgments right from the year 2000.

6. A Co-ordinate Bench of this Court in the case of SANJAY G. REVANKAR v. STATE BY DRUG INSPECTOR, U.K.DISTRICT, KARWAR, ILR 2002 KAR 475 has held as follows:

“Taking into consideration the Director, Manager, Secretary or other Officers of a Company are made vicariously liable to the collective action of a Company, who itself would be an accused in the offences like one on hand, there are certain restriction and preventive measures placed by the Legislation itself for making them co-accused along with the Company. Prima facie requirement is that the complainant to substantiate the basic requirements like the present accused is, to show he is in-charge of, or responsible for the conduct of the business of the Company, be it in any capacity and if he is the Director, Manger, Secretary or. Officer of the Company it should be averred and shown that the offence took place with his consent or connivance or is also attributable to the neglect on the part of such person (Director, Manager, Secretary and other Officer). Keeping in view, the observations of the Apex Court in the case of Shyam Sunder v. State of Haryana which are to the following effect:—

“More often it is common that some of the partners of the firm may not even be knowing of what is going on day-to-day in the firm. There may be partners, better known as sleeping partners