Upon amalgamation between two companies, the entity evolved cannot be prosecuted for an offence committed by the transferor company.

( 1 ) PETITIONER, Nicholas Piramal India Ltd. , arrayed as accused no. 5 in the complaint lodged by the respondent under section 18 (a) (i) read with section 27 (c), Drugs and Cosmetics Act, 1940 seeks quashing of the summoning order dated 18. 12. 2003.

( 2 ) FACTS in brief are that on 21. 9. 2000, a sample of drug known as Erythromycin Estolate Oral Suspension usp (60 ml) batch No. 1028, with manufacturing date August, 2000 and expiry date November, 2002 was collected by the Drug Inspector (complainant) from the premises of Sarvanand hospital in the presence of the proprietor of the hospital.

( 3 ) ON 21. 9. 2000, one sealed sample portion of the said drug was forwarded to the Government Analyst, central Indian Pharmacopoeia Laboratory, Ghaziabad, U. P.

( 4 ) ON analysis the sample of the drug was found to be not of standard quality.

( 5 ) THE manufacturing firm in its letter dated 7. 11. 2001 stated that it did not accept the Government Analyst's report and intend to adduce evidence in controversion of Government Analyst's report as provided under Section 25 (3) of the act and requested that sample be sent to Central Drugs Laboratory, kolkata for re-testing.

( 6 ) ON re-testing by Central Drugs Laboratory, Kolkata, sample was again declared to be not of Standard quality.

( 7 ) INVESTIGATION conducted by the complainant revealed that the said drug was manufactured by M/s. Biodeal Laboratories for M/s. Rhone-Poulene (India) Ltd. Investigation further revealed that pursuant to orders of the Hon'ble high Court of Bombay, on 27. 9. 2001, M/s. Rhone-Poulene (India) Ltd. was amalgamated with Nicholas Piramal India Ltd.

( 8 ) ON completion of the investigation, complainant lodged a complaint with the learned Metropolitan Magistrate in Pleading following persons as accused :- (i) Neil Goodes Managing Director, M/s. Rhone-Poulene India (Ltd. ). (ii) Jayantchimanlal Jani Deputy Managing Director, M/s. Rhone-Poulene ( India ) Ltd. (iii) J. P. Pandit Supervisory Chemist, M/s. Rhone-Poulene ( India ) Ltd, (iv) J. V. Vagle Supervisory Chemist, M/s. Rhone-Poulene ( India ) Ltd. (v) M/s. Nicholas Piramal ??? . . . . . . . . India Ltd. Through its Director, Ajay G. Piramal (vi) Thobhan Bhai Kurji ????? . . . . . . . . Patel (vii) M/s. Biodeal Laboratories Pvt. Ltd. Through its Managing Director, Thobhan Bhai Kurji Patel Managing Director, M/s. Biodeal Laboratories Pvt. Ltd.

8. Vide order dated 18. 12. 03, learned MM summoned the accused persons to face trial in the complaint. Same reads as under: "8. 12. 2003 present: DI in person i have heard DI/complainant in person and have perused the record. I take cognizance of the offence. Since the Complainant is public servant his statement is dispensed with. Issue summons of the complaint to the accused persons for 3. 5. 2004. MM, Delhi 8. 12. 2003"

( 9 ) LEARNED senior counsel for the petitioner submitted that the summoning order is based on non-application of judicial mind by the learned Metropolitan Magistrate. He further submitted that learned Metropolitan magistrate failed to note that M/s, Rhone-Poulene (India) Ltd. and Nicholas Piramal india Ltd. are two different companies. That the effect of amalgamation between the 2 companies is that M/s. Rhone-Poulene (India)Ltd. is no longer in existence. That since the offence was committed by M/s. Rhone-Poulene (India) Ltd. (transferor company), petitioner which is an entity seperate from transferor company cannot be prosecuted for the said offence.

( 10 ) PER contra, learned counsel for the state contended that petitioner is liable to be tried for the offence as it has taken over all the assets and liabilities of the firm M/ s. Rhone-Poulene (India) Ltd. In support of his contention, counsel relied upon clause 8 of scheme of arrangement between the 2 companies. Said clause reads as under:-

"8. LEGAL PROCEEDINGS all suits, actions and proceedings of whatsoever nature by or against RPIL, nfl (except