This criminal miscellaneous case is filed by accused Nos.3, 5 and 6 in C.C.No.582/2011 on the file of the Judicial First Class Magistrate Court, Karunagappally to quash the proceedings under Section 482 of the Code of Criminal Procedure (hereinafter called the 'Code').

2. It is alleged in the petition that, the petitioners are arrayed as accused Nos. 3, 5 and 6 in C.C.No.582/2011 pending before the Judicial First Class Magistrate Court, Karunagappally. The said case was taken on file, on the basis of Annexure-1 private complaint filed by the 2nd respondent under Section 32 of the Drugs and Cosmetics Act, 1940, against six accused persons including the present petitioners, alleging violation of Section 18(a) (1) of Drugs and Cosmetics Act. Annexure-3 and 4 would reveal that, 2 nd accused is the working partner and he is the person responsible for the day to day conduct of the business of the first accused firm. The petitioners are only sleeping partners and they have nothing to do with the day to day conduct of the business. There is no averment in the complaint even prima-facie to come to the conclusion that, they have got anything to do with the day to day business. In order to make the partners liable, it must be pleaded in the complaint that they are also equally responsible for the day to day conduct of business. In the absence of such allegation in the complaint, the case against them is not maintainable and the same is liable to be quashed, in view of the dictum laid down in several decisions of the apex court. So, they filed this application seeking the following relief:

"For the reasons stated above and other grounds which may be urged at the time of arguments, it is most humbly prayed that this Hon'ble Court may be pleased to quash Annexure-1 complaint and all further proceedings in CC.No.582/2011 on the file of the Judicial Magistrate of First Class, Karunagappally in so far as it is against the petitioners herein by exercising the inherent powers under Section 482 of the Code of Criminal Procedure."

3. Heard the learned counsel for the petitioner and learned Public Prosecutor. Learned Public Prosecutor filed a detailed statement as well.

4. The learned counsel for the petitioner submitted that, in Annexure-A1 complaint, there is nothing mentioned about the role that is being played by the petitioners, as partners of the first accused firm and to a notice sent, they have replied stating that 2nd accused is the person in charge of the business. So under the circumstances and in the absence of any allegation against them, the case against them is not maintainable and the same is liable to be quashed.

5. On the other hand, the learned Public Prosecutor submitted that, to the specific query, that has been issued to the first accused firm, as to who was responsible for the day to day conduct of the business, they did not answer the same, but except mentioned the name of the 2nd accused as the partner. So in the absence of such answer, the drug inspector/complainant has no other option but to implead all the partners as accused. Further under Section 34 of the Act, the burden is on the accused to prove that, the offence was committed without their knowledge and consent, which is a matter to be proved on the basis of evidence before the court below. So at this stage, the same cannot be quashed.

6. I have considered the rival contentions of both parties.

7. It is an admitted fact that, the first accused firm is a manufacturer of impugned medicine, which according to the defacto-complainant is substandard and was sold by the first accused firm to their distributors. It is also an admitted fact that, the petitioners are also partners of the first accused firm. To Annexure-A2 notice, the first accused firm has sent Annexure-3 reply in which the name of the 2nd accused was shown as one of the partner alone. But what was intended by their reply is that, he is the person responsible for the conduct of business. That may