The judgment establishes the principle that vicarious liability under the Bureau of Indian Standards Act requires specific averments and a clear case to be spelled out in the complaint before a person can be subjected to criminal process.

Z.K.SAIYED, J.

1. This petition is filed by original accused No.11. The prayer is for quashing criminal complaint No.3213 of 2001 filed qua him. The complaint contains allegations for offences punishable under Sections 11 and 12 of the Bureau of Indian Standards Act, 1986 ('The Act' for short). The case of the petitioner is that merely by virtue of being Director of the Company accused of said offence, petitioner do not carry the vicarious liability of such offence.

2. Briefly stated, the allegations in the said compliant are that during an inspection by the authorities, under the said Act, at the premises of one M/s. Chemet Chemical Ltd. (accused No.1 company), it was found that labels showing ISI mark of one Sabero Organics Gujarat Limited (accused No.6 company) were being pasted on the containers in which different chemical products of respondent No.6Company were being packed by the employees of accused No.1Company. The license of accused No.6 Company to use such mark had expired. As per the compliant, the said act was, therefore, in breach of Sections 11 and 12 of the said Act and would make the company punishable under Section 33 of the said Act. The Directors of both the companies are also shown as accused in terms of Section 35 of the said Act.

3. Learned counsel, Mr.Nanavati, for the petitioner vehemently contended that there are no allegations against the present petitioner of having committed any breach of Sections 11 and 12 of the said Act. Even if any offences are committed by accused No.1 or accused No.6Company, the present petitioner cannot be made answerable for such actions by virtue of his being Director of the accused No.6Company. In this respect, he relied on the decision of the Supreme Court in the case of 'S.M.S. Pharmaceuticals Ltd. V/s. Neeta Bhalla and another' reported in (2005) 8 SCC 89. He submitted that the view taken in the said decision is consistently followed in later decisions.

4. On the other hand, learned counsel, Mr. Dave, for the original complainant authority under the said Act, opposed the petition contending that the petitioner was Director of accused No.6Company at the relevant time. During visit, at the site of accused No.1Company, it was found that ISI mark of accused No.6Company whose validity had expired was being used on the products of said company. This would be clearly in breach of Sections 11 and 12 of the Act. Such actions would be punishable under Section 33 and the same being against a Company any person who is responsible for the affairs of the Company would be answerable under Section 35 of the Act.

5. In so far as allegations of accused Companies are concerned, they undoubtedly disclosed, primafacie, offences of breach of Sections 11 and 12 of the Act. Section 11 pertains to prohibition of improper use of Standard Mark. Such section provides that no person shall use, in relation to any article or process, or in the title of any patent, or in any trade mark or design the Standard Mark or any colourable imitation thereof, except under a license. Section 12 of the Act pertains to prohibition of use of certain names, etc. Such section provides that no person shall, except in such cases and under such conditions as may be prescribed, use without the previous permission of the Bureau of Indian Standard. Clause (b) provides that, any mark or trade mark in relation to any article or process containing the expressions Indian Standard or Indian Standard Specification or any abbreviation of such expression. If respondent No.6Company used expired ISI mark on its product, any action on part of the said company or its job worker who may have done so, may be in breach of such provision. Section 33 of the Act makes any such action punishable with fine which may extend to Rs.50,000/or with imprisonment which may extend to one year or both.

6. Question, however, is whether the present petitioner answerable to such charges. Section 35 of the said Act pertains to offences by com