The liability of individuals in-charge and responsible for the conduct of the business of a company at the time of the commission of the offense under the Drugs & Cosmetics Act, 1940, and the court's discretion to consider the direct impact on public health and the seriousness of the allegations in determining the sufficiency of evidence.

V.L. ACHLIYA, J.

1. The applicant/accused No. 1 has preferred this application u/s. 482 of Cr. P.C. for quashing Criminal Case No. 57/1994, pending on the file of Chief Judicial Magistrate, Bhandara as well as to set aside the order dated 26.04.2010 passed in the matter granting permission to complainant to lead secondary evidence.

2. Before appreciating the submissions advanced, it is necessary to consider few facts leading to filing of the present application. The respondent filed criminal complaint for offence u/s. 18(a)(i) r/w Section 16(a) and punishable u/s. 27(d) of Drugs & Cosmetics Act, 1940 (in short “the said Act”) as against nine accused which includes the applicant/accused No. 1 alleging therein that the accused Nos. 1 to 7 are the Directors of M/s. Dujohn Laboratories Ltd. Indore–the accused No. 9. Accused No. 8 is the employee of accused No. 9 – Company, who works in the capacity as Dy. General Manager. The accused were holding license in Form 28, bearing No. 28689 dated 22.2.89 valid upto 31.12.93. By virtue of the licence obtained, accused were permitted to manufacture for sale the Drug known as “Duneuron Injection 30 ml.” along with other products approved by the Drug Controller, Food and Drug Administration, Bhopal (MP). On 17.05.1993, the then Drug Inspector – Shri. R.D. Damle, visited the premises of M/s. Shri. Gurudeo Medical Stores, Bada Bazar, Bhandara, Maharashtra and drawn a sample of Duneuron Injection manufactured by respondent No. 9 – Company, of which accused Nos. 1 to 7 are the Directors. On analysis of said sample by Govt. Analyst, it was reported that said sample of drug found to be of not standard quality as the, Content of “Pyridoxine hydrochloride” in the sample found to be less than Schedule 'V' limits (41.7% of the labelled amount). As per procedure prescribed under the Act, the copy of the report was furnished and the further inquiry was conducted in the matter as per the provisions laid down under Section 18-A of the said Act, which includes the inquiry about the purchase details of the drugs in question. In inquiry made with M/s. Gurudeo Medical Stores, it was revealed that the said drug was purchased from M/s. Raj Pharma, General Merchant Market, Gandhibag, Nagpur vide Invoice No. 2974 dated 10.05.1993. Therefore, the Drug Inspector made inquiry with the owner of M/s. Raj Pharma, who, in turn provided the details of purchase and sale of said Injection. It was informed that, the sample of the drug which was seized from M/s. Shri. Gurudeo Medical Stores was purchased from M/s. Jai Medicos, G. M. Market, Nagpur. He also provided the documents to that effect. On further inquiry made with the owner of M/s. Jai Medicos, Nagpur, it was disclosed that the said Drug was purchased from M/s. Dujohn Laboratories Ltd. Indore i.e. accused No. 9, vide Invoice No. 10029, dated 19.4.1993. After it was confirmed that said drug was manufactured by accused No. 9 – Company as provided u/s. 23(4)(iii) and Section 25(2) of the said Act, the copy of test report along with the protocols of the test applied & sealed counter part of sample was sent to accused No. 9. Thereafter, the complainant along with Shri. A.M. Dongre, Drug Inspector visited the accused No. 9 and conducted inquiry and investigation regarding the manufacturing of said drug with Mr. Kailash Jindal, the accused No. 1 and Mr. Arun Ojha, accused No. 8. At the time of inquiry, the accused Nos. 1 & 8 disclosed that the drug in question was manufactured for sale on or about 08.04.1993 and distributed for sale on or about 19.04.1993. On investigation conducted in the matter, it was revealed that on or about 17.05.1993 the accused Nos. 1 to 9 had distributed and sold the said drug namely “Duneuron Injection 30 ml.” Batch No. 9303 manufactured by them, which was found to be of not of standard quality and thereby the accused Nos. 1 to 9 contravened the provisions of Section 18(a)(i) r/w Section 16(a) and rendered themselves liable for punishme