Directors' vicarious liability under Legal Metrology Act requires specific complaint averments of being in charge of business; mere directorship insufficient; company must be accused; magistrate must record prima facie satisfaction before process.

JUDGMENT :

URMILA JOSHI-PHALKE, J.

1. Heard.

2. Admit

3. Heard finally with the consent of the learned counsel for the applicant and learned APP for the State.

4. The application filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 challenging the proceeding Summary Criminal Case No.1129/2015 filed by the Inspector of Legal Metrology, pending before the 5^th Joint Civil Judge Junior Division and Judicial Magistrate First Class, Amravati, for quashing.

5. The criminal complaint is filed against the present applicant alleging that the complainant is the Inspector of Legal Metrology appointed under of the Metrology Act, 2009 and empowered under Sections 13 and 14 of the said Act and also as per Section 190 of the Criminal Procedure Code, 1973 to prosecute the accused under Legal Metrology Act.

6. As per his allegation, during inspection visit to the premises of M/s Walmart India Private Ltd. and on inspection of the sealed packages of “Sensodyne Ultra-Sensitive (Specially Designed for people with sensitive teeth), Fresh Gel”. It reveals that the manufacturer has not written name and address of manufacturer, commodity name, total number of the retail packages. These packages were kept for sale in premises with the suppliers tax invoice No.11587283 of M/s. Glaxo Smithkline Consumer Healthcare Limited, Building No. E-13, Shree Krishna Complex, Harihar Compound, Near Gajanan Petrol Pump, Bhiwandi, Thane. It is further alleged that accused is the supplier/dealer of M/s Glaxo Smithkline Consumer Healthcare Ltd. had committed a breach of Section 18(1) of the Legal Metrology Act, 2009 and Rules 24 of the Legal Metrology (Packaged Commodities) Rules, 2011 and is, therefore, guilty of the offence punishable under Section 36(1) of Legal Metrology Act, 2009.

7. On receipt of the complaint, the learned Magistrate has taken cognizance and issued the process against the present applicant.

8. Being aggrieved and dissatisfied with the issuance of the process, present application is preferred by the applicant for quashing of the FIR on the ground that the learned Magistrate has not considered the allegations which do not prima facie disclose commission of any alleged offence by the accused. In fact, there are no specific allegations against the accused i.e. the present applicant to connect him with the alleged offence. Though, he is the Director of the said company M/s. Glaxo Smithkline Consumer Healthcare Limited, but there is no whisper in the complaint that he is responsible for the day-to-day activities of the said companies and responsible for the act committed by the company. In fact, the company was not being made an accused in the complaint and the allegations about the commission of the offence is made out against the company is not sustainable. For this ground itself, the order of issuance of the process deserves to be quashed and set aside.

9. Heard learned counsel Mr. Harish V. Thakur for the applicant, who reiterated the contentions and submitted that the complaint is silent in respect of the role of the present applicant. There is no averment in the complaint that either the applicant is in-charge of the said company where the goods were manufactured. Even it is not the case of the complainant that the applicant is in-charge of the day-to-day affairs of the said M/s. Glaxo Smithkline Consumer Healthcare Limited. He further submitted that the complaint is nothi