A partner in a partnership firm cannot be held vicariously liable for an offence committed by the firm under Section 34 of the Drugs and Cosmetics Act, 1940, without evidence that the partner was in charge of and responsible for the conduct of the business.

( 1 ) ADARSH Marwah and Bihari Lal partners of M/s. Neha Agencies have brought this petition under Section 482 of the Code of Criminal Procedure for quashing the proceedings pending in the Court of Shri S. L. Khanna, Chief Metropolitan Magistrate on the basis of the complaint filed by respondent No. I for prosecuting the petitioners and one Mahinder Kumar and M/s. Neha. Agencies.

( 2 ) FACTS, in brief, are that M/s. Neha Agencies is a partnership firm of which Bihari Lal and Adarsh Marwah are the partners while Mahinder Kumar is the Manager. On November 27, 1986 at about 12. 30 P. M. complaint in the presence of public witnesses had inspected the premises of the said partnership firm situated at D-4, Laxmi Nagar, Vikas Marg, Delhi and Mahinder Kumar was present at that time and it was found that Panjon tablets manufactured by M/s. Panama Chemical Works, Bombay stood stocked in the said premises and exhibited the same for sale and distribution. Two samples of the aforesaid drug were taken from Mabinder Kumar and they were duly sealed and after filling in necessary forms, notice was given to the said accused and he gave a letter to the complainant disclosing that Neha Agencies, partnership firm has been dealing with wholesale business of Ayurvedic drugs like Panjon tablets and has been selling the same to different dealers in Delhi and he himself has been working as a Manager while the other two accused are partners of the fourth accused, namely, partnership firm M/s. Neha Agencies. The samples were got analysed from Government Analayst, Delhi Drug Testing Laboratory, Bangalore. Then evidence was collected from three firms where the said drug has been sold by M/s. Neha Agencies. It was mentioned in the complaint that the said partnership firm was not holding any licence to manufacture or exhibit and distribute the said drug as required under the Drugs and Cosmetics Rules 1945 framed under the Drugs and Cosmetics Act 1940 and thus the aforeaid four accused have contravened the provisions of Section 18 (c) of the Act and thereby committed the offence punishable under Section 27 (d) (ii ). They were also prosecuted for contravening the provisions of Section 18a and thereby committed an offence punishable under Section 28 of the Act. It was mentioned in the complaint that all the three accused i. e. Manager and the two partners of the partnership firm were jointly responsible to conduct the business of the said partnership firm on the date the samples were taken.

( 3 ) THE learned counsel for the petitioners has pressed for quashment of the proceedings qua Smt. Adarsh Marwah only at the stage of arguments. He has urged that neither in the complaint nor in the documents filed alongwith the complaint, it is disclosed as to how petitioner Smt. Adarsh Marwah has been in charges of and responsible for the conduct of the business of the partnership firm and in the absence of any such evidence and material, the criminal proceedings against Smt. Adarsh Marwah should not be allowed to be continued.

( 4 ) I have gone through the complaint as well as the statement of the complainant made as Public Witness -1 before the Court concerned and find that except for saying that this petitioner Adrash Marwah is one of the partners of the said partnership firm, not a single sentence has been uttered as to how she has been found to be in charge of and responsible for the conduct of the partnership business. Section 34 of the Drugs and Cosmetics Act 1940 clearly lays down that where any offence in this Act has been committed by a Company, every person who at the time the offence was committed, was in charge of and was responsible to the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Mere Indian Police Service dixit of the complainant is not enough to bring home the offence to the partners of the partner