Directors of a company cannot be held liable for offences committed by the company without a specific averment of their personal involvement.

P. C. Borooah, J.:- The five petitioners and the opposite party No. 3 are Directors of Messrs Premier Irrigation Equipment (Private) Limited having its registered office at 17/1C. Alipore Road, Calcutta-27 and its factory at Boral in the District of 24 Parganas. The Company is licensed under the Central Excise Rules to manufacture aluminium tubes from aluminium strips.

2. On March 10, 1978 the Superintendent of Central Excise Centralised Preventive Organisation, Calcutta filed a petition of complaint in the court of the Chief Judicial Magistrate, Alipore, 24 Parganas against the petitioners and the opposite party No. 3 alleging inter alia, that on November 10, 1974 when officers of the Centralised Preventive Organisation visited the factory of the company at Boral and verified the stock of aluminium pipes lying in the approved store room, they detected a shortage of 30,688.5 meters of pipes of different sizes valued at Rupees 10,78,498,57 p. and involving Central excise duty of Rs. 4,31,399,87 p. It was further alleged that when on November 11, 1974 the officers of the said organisation searched the factory and the head office of the company, they found in the factory that 38,998.5 meters of aluminium pipes valued at Rupees 12,66,638.54 P. and involving central excise dirty of Rs. 5,06,653/- had been stored in an open yard outside the approved store room without an account being kept in the statutory register of the company and that on search of the head office records and documents were seized which revealed that during the period between January 1, 1973 to November 10, 1974 the company had manufactured and removed from its factory a total quantity of 1,12,739.8 metres of aluminium pipes valued at Rs. 22,05.971.35 P. and involving basic and auxiliary duty amounting to Rupees 8,82,388.61 P. and there was no account for the same in the statutory records, and that the central excise duty leviable thereon had not been determined and paid.

3. The petitioners and the opposite party No. 3 were sought to be implicated for the commission of an offence under S. 9 of the Central Excises and Salt Act, 1944 (hereafter the Act) inasmuch as they were held to be responsible to the company for the conduct of the business of the company at the relevant time when the offence was committed.

4. Mr. J. N. Ghose, learned Advocate appearing for the petitioners, has submitted that cinder S. 9 (1) of the Act any person who commits any of the offences mentioned in the said section has been made liable for prosecution. Therefore, according to Mr. Ghose there should have been a specific averment in the petition of complaint to the effect that the directors who have been implicated by virtue of their office were personally responsible for the acts of commission or omission for which they have been sought to be made liable under S. 9 of the Act. Mr. Ghose has pointed out that apart from what has been stated in paragraph 10 there is not a single sentence anywhere else in the petition of complaint which seeks to implicate the petitioners or the opposite party No. 3. Mr. Dilip Kr. Dutt learned Advocate, appearing for the opposite party No. 3, has adopted the arguments of Mr. Ghose.

5. Mr. Anjan Kumar Mukherjee, learned Advocate appearing on behalf of the Superintendent of Central Excise namely the opposite party No. 1, has argued that the petition of complaint read as a whole makes ft dear that the petitioners and the opposite party No. 3 were responsible for the commission of the offence under S. 9 of the Act. Mr. Mukherjee has further argued that reading S. 9 and S. 9C of the Act together it is dear that it was the intention of the framers of the Act to make the Directors of a company vicariously liable unless they could show that they Hid not have the requisite mens rea.

6. In the instant case we are concerned with S. 9 (1) sub-clauses (b) and (bb) of the Act which reads at follows:-

"9 (1) Whoever commits any of the following offences, namely :-

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