Liability under the Drugs and Cosmetics Act requires clear averments in the complaint regarding the accused's managerial responsibility; mere directorship is insufficient without evidence of control over daily affairs.

Judgment :

Sandeep Sharma, J.

Since common question of facts and law are involved in both the above captioned cases, this Court after having clubbed the same, heard them together and are now being disposed of vide common judgment.

Cr. MMO No.305 of 2022

2. By way of instant petition filed under Section 482 Cr.P.C., prayer has been made on behalf of petitioner for quashing of complaint case No.8/3 of 2022, titled as Union of India Vs. M/s Theon Pharmaceuticals Limited and Others, pending in the Court of learned Additional Chief Judicial Magistrate, Nalagarh, District Solan, as well as order dated 10.01.2022, passed in afore complaint, thereby summoning petitioner as an accused.

3. Briefly summarised, the facts are that on 31.12.2021, Mr. Fahim Khan, Drug Inspector, Central Drug Standard Control Organisation, India, Sub-Zone Baddi, Himachal Pradesh, filed a complaint under Sections 18(a)(i) and 18(a)(vi) read with Section 16 punishable under Section 27(d) of the Drugs and Cosmetics Act, 1940, (for short, ‘the Act’) against M/s Theon Pharmaceuticals Limited, Managing Director of afore company i.e. petitioner herein and Mr. Puran Chand Joshi, Wholetime Director, averring therein that Mr. V. Kaviyarasan, the then Drugs Inspector, CDSCO, Sub- Zone Baddi, Himachal Pradesh, had drawn the sample on Form No.17, dated 27.03.2018 of the drug “Diclofenac Sodium” with Thiocolchicoside tablet (Theomove-4), Batch No.GT171481, DoM-11-2017, DoE-10-2019, manufactured by M/s Theon Pharmaceuticals Ltd., village Saini Majra, Tehsil Nalagarh, District Solan, Himachal Pradesh – 174101, from the premises of Main Drugs Store, Govt. Multi-specialty Hospital, Sector 16, Chandigarh, under Section 23 of the Drugs and Cosmetics Act, 1940. Afore Drug Inspector divided the drug, so lifted as samples, into four portions and sealed them as per the procedure prescribed under the Drugs and Cosmetics Act, 1940, in the presence of Mr. Anil Tanwar (Pharmacist of Main Drug Store, Govt. Multi-specialty Hospital, Sector 16, Chandigarh) and signatures of Mr. Anil Tanwar were taken on each of the sample portions.

4. After the receipt of report from the Regional Drugs Testing Laboratory, Chandigarh, on 23.08.2018 and after completing the codal formalities, as envisaged under the Act, complaint under Sections 18(a)(i) and 18(a)(vi) read with Section 16 punishable under Section 27(d) of the Drugs and Cosmetics Act, 1940, was filed before the learned Additional Chief Judicial Magistrate, Nalagarh, District Solan (Annexure P-1), impleading therein petitioner herein, who happens to be Managing Director of M/s Theon Pharmaceuticals Limited, as one of the accused.

5. After having found prima facie case against the accused, named in the complaint, learned Court below issued process vide order dated 10.01.2022 (Annexure P-2), thereby calling upon the accused, including petitioner herein, to appear in aforesaid complaint. In the afore background, petitioner has approached this Co