Partners cannot be prosecuted under the Drugs and Cosmetics Act without the firm being charged as an accused, emphasizing the necessity of vicarious liability in criminal proceedings.

JUDGMENT :

Rakesh Kainthla, J.

Drug Inspector inspected the premises of M/s Soni Medical Store on 17.1.2018. He obtained the samples of GMP-M2 for analysis after payment of the amount. One sample was sent to the Government Analyst, who issued a report that the sample was not of standard quality. The Drug Inspector served a notice upon Ram Swaroop Soni, Proprietor of M/s Soni Medical Store informing him about the sample not being of standard quality and directing him to produce the record related to the supplier/manufacturer from whom the drugs were obtained by him. A reply was submitted by Ram Swaroop Soni stating that GMP-M2 tables were obtained from M/s GEE CEE Labs Pvt. Ltd., Manimajra, Chandigarh. The drug Inspector served a notice upon M/s GEE CEE Labs Pvt. Ltd., Manimajra informing it that the drug was not of standard quality and directing it to produce the record/bill related to the supplier/manufacturer from where the drug was obtained by M/s GEE CEE Labs Pvt. Ltd., Manimajra. A reply was submitted that drugs were procured from M/s Adwin Pharma, Village Rampur Jattan, Trilokpur Road, Kala Amb, Tehsil Nadaun, District Sirmour, H.P. Drug Inspector served a notice upon M/s Adwin Pharma on 11.3.2020 informing it that the drug was not of standard quality and directed it to produce the complete record required for the investigation of the case. No reply was furnished by M/s Adwin Pharma. A reminder was served on 23.6.2020. Again, no reply was submitted. Another reminder was served on 31.7.2020. M/s Adwin Pharma submitted the documents vide letter dated 10.8.2020. M/s Adwin Pharma also stated that it was not satisfied with the report of the Government Analyst and it requested to send the sample to the Central Drug Testing Laboratory, Kolkata for retesting. The drug Inspector sent a reply to the letter on 10.9.2020, stating that the sample had expired and could not be sent for retesting. M/s Adwin Pharma was a Partnership Firm and Sh. Ramesh Chander Dhamija, Smt. Manorma Dhamija and Ashish Dhamija are the partners of the Firm. Prosecution sanction was sought, which was granted and a complaint was filed before the Court of learned Judicial Magistrate First Class (JMFC), Court No.2, Ghumarwin, District Bilaspur, H.P. for the commission of an offence punishable under Section 27 (d) of the Drugs and Cosmetics Act.

2. The petitioners filed the present petition for quashing the complaint pending before the Court. It was asserted that the petitioners are not the Managing Partners of the Company. Mr. Ramesh Dhamija was the sole Managing Partner of the Company who expired on 8.11.2017. The petitioners were only the sleeping partners and they had no role in the management of the Firm. The Firm was not arrayed as a party and the proceedings against the petitioners are not maintainable. No opportunity was ever afforded to the petitioners to get the sample retested as per Section 25 of the Drugs and Cosmetics Act. Information by the Drug Inspector was sent only on 20.6.2020, by which time the drug had already expired and could not have been sent for reanalysis. The petitioners are gravely prejudiced in their defence and the complaint is liable to be quashed on this ground alone. Therefore, it was praye