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JAMMU AND KASHMIR HIGH COURT
Sanjay Kumar Gupta, J.
Rajesh Kumar and Anr. —Petitioners
versus
State through Drug Inspector
Doda —Respondent
561-A Cr.P.C. No.297 of 2016 and MP No.01 of 2016
Decided on 1.9.2017
Counsel for the Parties:
For the Petitioner:Mr. Varut Kumar, Advocate
For the Respondent: None
IMPORTANT
Vicarious liability of a person for being prosecuted for an offence committed under the Act by a company arises if at the material time he was incharge of and was also responsible to the company for the conduct of its business.
Headnote:Drugs and Cosmetics Act, 1940—Section 34—Sample of drug “Curecef 1000” was reported by Analyst not of standard quality—Prosecution of petitioners alleging to be managing Directors of Company which was manufacturer of Drug—Sustainability of prosecution of petitioner in absence of manufacturer company impleaded as accused in complaint—To prosecute category of persons as enumerated under Section 34 of the Act, condition precedent was that such persons’ must have been in charge of and were responsible to company for conduct of business of company—No averment in complaint to show that petitioners were in charge and responsible to company for conduct of business of company—Prosecution against petitioners was liable to be quashed. (Paras 7, 10, 11, 13 and 16)
Result: Petition allowed.
JUDGMENT
Sanjay Kumar Gupta, J.—Through the medium of instant petition under Section 561-A Cr.P.C., petitioners seek quashing of all proceedings in File No.59/complaint of 2013 titled Drugs Inspector Doda Vs. Winner Pharmaceuticals & ors. Under Section 18(a)(i) read with Section 27(a) of Drugs and Cosmetics Act, 1940 pending before the Court of learned Chief Judicial Magistrate, Doda.
2. In the petition, it is submitted that the petitioners are partners in a partnership concern namely M/s R. H. Laboratories having its registered office and place of business/ manufacturing unit situated at Opp. Gondpur, Industrial Estate Area, Paonta Sahib, Himachal Pradesh. The partnership firm M/s R. H. Laboratories has acquired one manufacturing licence being Licence Nos.MNB/05/180 & MB/05/181 (Form Nos.25 & 28) for manufacturing, sale and distribution of drugs under Drugs and Cosmetics Act, 1940 from the State Drug Licensing Authority Himachal Pradesh. The said licence was duly renewed from time to time and the Firm had provided the list of Technical Staff/persons under whose supervision and directions, various drugs are being manufactured.
3. It is pleaded that the respondent/complainant has filed a criminal complaint under Section 18(a)(i) read with Section 27(d) of Drugs and Cosmetics Act, 1940 against the petitioners alleging to be Managing Directors of M/s R. H. Laboratories and also against one Mahdeep Singh Bijral (M/s Winner Pharmaceuticals) arrayed him as accused No.1 in the said complaint.
4. In the petition, it is stated that on 22.02.2013, respondent/complainant lifted the sample of drug “Curecef 1000”from the premises of District Hospital Kishtwar for test analysis and the details of drugs in question are as under:-
Drug in question
Curecef 1000
Batch No.1
RHI-11/05
Date of Mfg.
11/2011
Exp. Dt.
10/2013
Manufactured by
M/s R.H. Laboratories
5. That one sample portion of drug in question was sent to Govt. Analyst Doda for test and analysis vide Form No.18 and the Government Analyst Doda vide its Report dated 27.04.2013 has declared the drug in question Not of Standard Quality due to the reason that the sample fails in the test for particular matter. The respondent asked District Hospital Doda authorities to disclose the source of purchase of drug in question and in reply District Hospital Doda disclosed the name of Controller Stores, Provincial Medical Stores, Jammu as the source of purchase and supply, who in turn, disclosed the name of M/s Winner Pharmaceuticals as the source of purchase of drug and supply. Further, M/s Winner Pharmaceuticals given the name of M/s R. H. Laboratories as the manufacturer of the drug under subject.
6. It is submitted that as stated in the complaint that the respondent has issued letter to Managing Director M/s R. H. Laboratories, but neither the partnership firm nor its partners have received any such letter from the respondent. That respondent has filed criminal complaint against the petitioners before the Court below and petitioners have caused their appearance before the Court and furnished bail bonds. The respondent has alleged wrong penal sections in the impugned complaint as the offence alleged to have been committed pertains to not of standard quality and the same is punishable under Section 27(d) of the Act and not under Section 27(a).
7. Being aggrieved and dissatisfied with the initiation of impugned proceedings pending before the Court of CJM Doda in complaint Drugs Inspector Doda Vs. Winner Pharmaceuticals & ors, petitioners challenge the same, inter alia, on the ground that the proceedings initiated against the petitioners by way of filing of impugned complaint are against the provisions of Drugs and Cosmetics Act, 1940, hence require to be quashed. That the impugned complaint is liable to be set aside against the petitioners on the ground that it involves
