The main legal point established in the judgment is that for vicarious liability under Section 34 of the Drugs and Cosmetics Act, 1940, it is essential to prove that the directors or partners were in charge of the company/firm and responsible for its conduct of business, and that the offence was committed with their consent, connivance, or neglect.

ORDER :

1. By way of instant petition, a prayer has been made to quash the proceeding pending before learned Chief Judicial Magistrate, Sirmour at Nahan, bearing complaint No. 05/03 of 2013, titled as State of H.P. through Drugs Inspector versus Ashok Kumar Tyagi and others, as against the petitioners.

2. Petitioners alongwith respondent No.4 are partners of the firm M/s August Remedies (respondent No.3). The said firm is engaged in manufacturing of drugs. The Drug Inspector had taken samples of 13 drugs manufactured by respondent No.3. Out of these, 2 samples were declared “not of standard quality” by Government analyst, CTL Kandaghat, District Solan, H.P. The Drugs Inspector after obtaining prosecution sanction, instituted a complaint before learned Chief Judicial Magistrate, Sirmour at Nahan under Section 18(a) (i) read with section 27 (d) of the Drugs and Cosmetics Act, 1940 (for short the Act). Besides respondent No.3, petitioners and respondent No.4 were impleaded as accused.

3. Petitioners have sought quashing of aforesaid complaint as against them on the grounds firstly that the prosecution as against them was not permissible in view of the provision of Section 34 of the Act. It is contended on behalf of the petitioners that from the bare perusal of contents of complaint and the documents annexed therewith, it is not made out that the petitioners were incharge of respondent-firm and were also responsible for conduct of its day to day business, secondly, the Test Analysis Report of Government analyst was not admissible in evidence, as full protocol of test was not furnished, thirdly the drug in question was not treated or analysed as per the validation provisions of second schedule of the Act, fourthly, drug inspector had not followed the correct procedure of sampling and despatch and lastly the samples were not stored to remain in same state/condition, as that of when they were acquired.

4. Respondents No. 1 and 2 have contested the prayer of petitioners by filing written reply. It is submitted that petitioners and respondent No.4, at the time of commission of offence, were incharge of and also were responsible for conduct of business of respondent No.3-firm. They were having knowledge of the commission of the offence. The drug inspector, after inquiry had found that petitioners and respondent No.4 were incharge of and responsible for conduct of business of the firm. Regarding the other grounds of challenge, it was submitted that the complaint could not be quashed on such grounds, as those involved triable issues and were required to be decided during trial.

5. I have heard learned counsel for the parties and have gone through the record carefully.

6. The normal rule in the cases involving criminal liability is against vicarious liability, i.e., no one can be held criminally liable for an act of another. This rule, however, is subject to exception on account of specific provision being made in the statute extending liability to others. Section 34 of the Act is one such provision which binds the Directors of the Company or partners of the firms for the criminal acts of the company or the firm as the case may be, on fulfillment of conditions prescribed therein. The conditions are explicitly clear that for making the Directors or partners liable vicariously, the Directors or partners should be in charge of the company/firm and should also be responsible to company/firm for conduct of the business of the company/firm. Further such liability is also attracted; if it is proved that the offence was committed with the consent or connivance of or is attributable to any neglect on the part of any Director, Manager, Secretary or other Officer of the company.

7. Contents of para 9 of the impugned complaint has been relied upon by respondents No. 1 and 2 to support their contention that the petitioners and respondent No.4 were incharge of the firm and were also responsible for its business. Para 9 of the complaint reads as under:-

“T