The judgment established the principle that a company can be prosecuted without impleading its Directors or persons responsible for conducting its business, and can be sentenced to a fine for offences carrying imprisonment sentences.

JUDGMENT

1. Through the medium of instant petition, the petitioners have challenged the complaint filed by respondent No.1/Drugs Inspector, Kathua against the petitioners and proforma respondent alleging commission of offences under Section 8(a)(i) read with Section 27 (d) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the 'Act of 1940'). Challenge has also been thrown to order dated 09.08.2012 passed by the learned District Judicial Mobile Magistrate (T), Kathua (hereinafter referred to as the 'trial Magistrate') whereby the learned Magistrate has opined that, prima facie, offences under Section 8(a)(i) read with Section 27 (d) of the Act of 1940 are made out against the accused and the process has been issued against them.

2. Record shows that respondent No.1/Drugs Inspector has lodged the impugned complaint against the petitioners and co-accused before the trial Magistrate. As per the complaint, on 24.11.2011, the complainant conducted a routine inspection of the premises of M/S Shivam Pharmaceutical and sample of the drug 'Trulax, Batch No. 9003, manufacturing date 07/2009, expiry date 06/2012' was collected from the said premises. The said sample, upon analysis by the Government Analyst, was found to be not of standard quality. During investigation, it was found that the drug in question was supplied by petitioner No.2, whereas the same was manufactured by petitioner No.1/M/S Cadila Pharmaceutical Ltd. Thus, petitioner No.1 happens to be the manufacturer and petitioner No.2 happens to be the distributor of the drug in question. At the instance of petitioner No.1/the manufacturing company, the sample was sent to Central Drug Laboratory, Kolkata for reanalysis. After reanalysis of the sample, it was reported by the CDL, Kolkata that the sample was not of standard quality. Accordingly, the prosecution was launched against the petitioners and the other co-accused.

3. The petitioners have raised a number of grounds to challenge the impugned complaint and the proceedings emanating therefrom, but the main grounds that have prevailed during the course of arguments are that the prosecution against the petitioner Company without impleading its Directors or office bearers, who were responsible for conduct of day to day business of the company, cannot proceed. It has also been contended that the drug in question is a proprietary medicine, as such, the tests applied for its analysis and reanalysis by the Government Analyst and CDL, Kolkata are not in accordance with the Drugs and Cosmetics Rules, 1945 (hereinafter referred to as the 'Rules of 1945') which has resulted in incorrect test results.

4. Respondent No.1/complainant has filed his reply to the petition. In his reply, the allegations made in the impugned complaint have been reiterated and it has been contended that the scope of jurisdiction of this Court under Section 482 of Cr.P.C is very limited and it cannot be exercised as a matter of course. It has also been contended that the Court should keep in mind the interest of the public health while adjudicating the instant matter and that it is open to the petitioners to raise the aforesaid contentions before the trial Magistrate during trial of the impugned complaint.

5. Heard learned counsel for the parties and perused the material on record including the trial Court record.

6. As already noted, the first contention raised by learned Senior Counsel, appearing for the petitioners, is that, without impleading Directors/office bearers responsible for conducting day to day business of the company, the proceedings against the said company, cannot sustain. It has been contended that the Company is a juristic person and it has to be represented by its office bearers or Directors while launching prosecution against it and in view of Section 34 of the Drugs and Cosmetics Act, both the company as well as the persons responsible for conducting its day to day business are the necessary parties to the proceedings. On this ground