IMPORTANT POINT
In an offence under Drugs and Cosmetics Act by a company or firm partners of such company or firm could not be prosecuted unless complaint alleged that they were in-charge of business of the company or firm.

ORDER

S.S. Parkar, J. - These three petitions are filed by the same petitioners accused for quashing the complaints filed against them under the provisions of the Drugs and Cosmetics Act, 1940 and since they involve common question of law, the same are being disposed of by this common judgment.

2. The petitioner-company i.e. Prem Pharmaceuticals situated at Osan Baug, P.O. Palda, Indore (MP) is a manufacturer of drugs. The petitioner-company holds valide drug licence to manufacture for sale and distribution different transfusion fluids and is permitted to manufacture 0.9% Sodium Chloride and 5% Dextrose Injection I.P. The said injections are used as intravenous injections to the persons who are unable to take food and water orally or otherwise are unable to digest food having under gone surgery or otherwise.

3. In the first case the sample of the aforesaid injection was collected from St. George Hospital, in the second case from Civil Hospital. Alibaug and in the third case the sample was collected from various hospitals in Maharashtra. The said samples "were' declared as not of standard quality as they contained suspended matter visible to an unaided eye. The samples were collected by the Drug Inspectors from various places and sent for analysis. As per the report of the Chemical Analyser the samples of the drug was declared to be not of standard quality as they contained suspended matter visible to an unaided eye. Therefore, the prosecutions were lodged against the petitioners who are the manufacturing company and its 10 partners including four lady, partners. The, prosecutions were lodged under section 18(a)(i) read with sections 16, 34 and 27(d) of the Drugs and Cosmetics Act. 1940. These three petitions have been filed for quashing those cases under Article 227 of the Constitution of India and under section 482 of the Code of Criminal Procedure.

4. The learned Counsel appearing for the petitioners raised two contention. Firstly, he contended that the injection of drug in question cannot be said to be of sub-standard quality for visibility of suspended matter as the particles are likely to develop if the drug is not stored in cool place and. there is no allegation that foreign material was found in the said drug. Secondly, it was contended that all the partners of the company cannot be prosecuted in view of section 34 of the Act unless they are shown to be in-charge of and responsible to the company for the conduct of the business of the company.

5. The drugs which were seized from the different hospitals seem to have been manufactured in August. 1986 and their expiry date was of August. 1988. The samples were collected in the month of November 1986 containing particles. It is not in dispute that the, company is entitled by its licence to manufacture mixture of Sodium Chloride and Dextrose. Under Rule 76 of the Drugs and Cosmetics Rules. 1945 manufacturing company is bound to appoint a qualified manufacturing chemist approved by the licencing authorities under the Drugs arid Cosmetics Act. In para 3 of the petition it is averred that the petitioner-company has been manufacturing all drugs by and under direct control of qualified chemist engaged by the company in compliance with Rule 76 of the Drugs and Cosmetics Rules. It is further' stated in para 4 of the petition that the petitioner-company had employed one Chand Sharma as a Chemist who used to manufacture all the drugs and was responsible to it for proper manufacture of it. It is further stated that a separate qualified Chemist was also appointed by the company for the laboratory of the petitioner-company and was assisted by qualified staff. It is not disputed on behalf of the State that both these. Chemist as well as analytical chemist are qualified and have been approved by the licencing authorities.

6. It is further pointed out an behalf of the petitioners that the Pharmacopoeia of India under Ministry of Health and Family Welfare appoints Pharmacopoeia Committee wh