Back
2009 Supreme(Bom) 1755
In the High Court of Bombay at Nagpur
THE HONOURABLE MR. JUSTICE S.S. SHINDE
Shri Ramprakash Gulati, s/o Shri A. N. Gulati & Another Appellant
Versus
State at the instance of S.B. Ghotkar, Drugs Inspector, Yavatmal Office of Assistant Commissioner, Food and Drug Administration Respondent
Criminal Application No.768 of 2009
Decided on : 17-12-2009
Advocate Appeared:
For the Applicants:S.V. Sirpurkar, Advocate.
For the Respondent: S.S. Doifode, A.P.P.
Headnote:Drugs and Cosmetics Act, 1940 - Sections 18(a)(i), 16, 17-B, 27(c) and 34 - Analysis of cosmetic cream - Sample of cream taken by Drug Inspector - Sample allegedly taken sincerely - Sample sent to analyst - Samples not containing statutory ingredients - Summons issued by trial Court - Application not served with summons - Applicants knew through others - Now this application - Applicant plea he has resigned from directorship - Their plea they did not hold post of director when offence was committed - Absence of averment that they were directors at time when offence took place - Complaint referred memorandum of company that was not verified by competent authority - Applicant succeeds - Complaint quashed. - Case of the applicants is that they have resigned from the Directorship of the Company on 5.5.1989 and to that effect, Registrar of Companies was informed by them. Therefore, it can safely be said that the complainant, without application of mind and verifying that at the relevant time i.e. on the date of alleged offence whether applicants were Directors or not, has added them as accused persons merely on the basis of Memorandum of Association, which was prepared in 1987. Though, learned A.P.P. submitted that burden lies on the applicants to prove that they have resigned on 5.5.1989, it was not difficult for the complainant at least to have prima facie and preliminary search before filing the complaint to see that who are the persons responsible and incharge of the day-to-day affairs of the company. After all, the record maintained by the Director of Companies is public document/record.
Taking over all view of the matter, it will not be out of place to mention that provisions of Section 34 of the Act is pari materia to provisions of Section 141 of the Negotiable Instruments Act and, therefore, case in hand is squarely covered by judgments of the Apex Court cited.
It would be appropriate to test the case in hand on the touchstone of law laid down in the above referred pronouncements. It is admitted position that in the complaint there are no averments that the applicants/accused were incharge and responsible for the conduct of business of company at the time of commission of the alleged offence. Therefore, the case in hand is squarely covered by the various pronouncements by the Hon’ble Supreme Court.
1. This application is filed with a prayer to quash and set aside the complaint against applicants and further to quash and set aside proceedings in Criminal Complaint Case No. 271/1996 pending before the Chief Judicial Magistrate, Yavatmal.
2. Non applicant/complainant filed complaint bearing No.271/1996 before Chief Judicial Magistrate, Yavatmal against the applicants along with other accused for the offence punishable under Section 18 (a) (i) read with Section 16 and 17B of the Drugs and Cosmetics Act, 1940 punishable under Section 27 (c) of Section 34 of Drugs and Cosmetics Act, 1940 (Hereinafter referred to as “the Act”). The applicants herein are arrayed as accused nos. 1 and 4 in the said complaint.
3. Perusal of the complaint would show that non applicant, who is Drug Inspector, appointed under Section 21 of the Act while applicants are shown as Directors of M/s. Pilco Pharma Pvt. Ltd. Kanpur. It is alleged in the complaint that complainant visited the premises of accused no. 6 on 09.06.1995, who is a Distributor and drew sample of Inframycin Skin Cream bearing Batch No. IC-12 manufactured in August-1994 having expiry date July-1996 and the said product is said to be manufactured by Pilco Pharma Pvt. Ltd. 123/37, Saresh Bagh, Kanpur. The complaint further disclosed that complainant followed further procedure to send sample for analysis. The samples were also drawn from the other distributors. The complainant even came to the conclusion that the sample does not contain with the standards and hence an offence is alleged to have been committed under Section 18(a) (i) of the said Act.
4. Trial Court had issued summons on 31.09.1996. However, applicants herein have not been served with the said summons. The applicants came to know through other accused that prosecution is pending against them and the Court has issued warrants against all the accused. Hence, the applicants are constrained to file this application.
5. The learned counsel for the applicants invited my attention to Section 34 of the Act, which deals with offence by Company. Section 34 of the Act reads as under:-
“34. Offences by companies.- (1) Where an offence under this Act has been committed by a company, 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: 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 or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), 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, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.- For the purposes of this section-
(a) “company” means a body corporate, and includes a firm or other association of individuals; and
(b) “director” in relation to a firm means a partner in the firm.”
On plain reading of Section 34 of the Act, the learned counsel appearing for the applicants urged that the other person, who is associated with the company, cannot be made accused and only those persons, who were incharge of or who are responsible for conduct of business of the company on the date on which offence is alleged to have taken place, can be arrayed as accused. Therefore, the learned counsel would submit that the entire complaint does not disclose any offence as against th
