A complaint against a company director must explicitly allege their responsibility for the company's conduct to be legally maintainable under the Drugs and Cosmetics Act.

ORDER :

1. In the instant petition, the petitioner herein has invoked inherent power of this Court enshrined under section 561-A Cr.P.C. (now section 528 BNSS of 2023) for quashing of criminal complaint titled as, “Drugs Inspector Reasi vs. Anuradha and others” including the proceedings initiated thereon (for short the impugned complaint) pending before the Judicial Magistrate 1st Class, Katra (for short the Magistrate).

2. The facts as stated in the petition and under the shade and cover of which the instant petition has been filed are that the petitioner herein is the Director of a Private Limited Company, namely, M/s Alna Biotech Pvt. Limited having its registered office at S.C.F. 1013, Mani Majra, Chandigarh holding a distribution and wholesale license of drugs under in terms of the Drugs and Cosmetics Act, 1940 (for short the Act of 1940) issued by the competent authority.

It is being stated that the respondent herein filed the impugned complaint under sections 18(a)(i) read with section 27(d) of the Act of 1940 besides others against the petitioner herein, on the ground that a drug namely, “CALSAFE-CZ” (tablet) having batch No. RRT-1052, with date of manufacturing as 07/2013 and date of expiry as 06/2015 manufactured by one M/s Ross Robbinz Biotech was found upon analysis not of standard quality and that the said drug had been sold/distributed by the above named company of the petitioner herein after obtaining it from the manufacturer, whereupon, the above named company of the petitioner came to be called upon to submit its reply/response qua the said analysis of the drug in question, in response whereof the petitioner’s company submitted that since the drug in question is not being manufactured by it as such, it is not liable to be prosecuted in terms of section 19(3) of the Act of 1940.

It is being further stated that dissatisfied with the aforesaid response submitted, yet the impugned complaint came to be initiated against the petitioner before the Magistrate wherein cognizance came to be taken and the petitioner came to be summoned having been implicated as an accused 4 therein in the capacity as Director of the company.

3. The petitioner herein has maintained the instant petition on multiple grounds.

4. Response to the petition has been filed by the respondent, wherein the petition has been opposed on the premise that the petitioner has been found to be involved in connection with the commission of the offences covered under the complaint under challenge and that the said complaint came to be lawfully and rightly instituted on account of such involvement of the petitioner herein whereupon the Magistrate validly and legally proceeded thereof.

Heard learned counsel for the parties and perused the record.

5. The learned counsel for the petitioner, at the outset, while making his submissions in line with the contentions raised and grounds urged in the petition would submit that the impugned complaint has been filed by the respondent without impleading the petitioner’s company as an accused being sine-qua-non, inasmuch as, the petitioner has been implicated as an accused without pleading in explicit terms in the complaint that the petitioner in the capacity as a Director of the company at the time of commission of the alleged offence was incharge of and responsible for the conduct of the business of the company and as such, on account of the said failure of the complainant respondent herein, the impugned complaint is not legally maintainable and that the Magistrate, as such, ought not to have either entertained the same or else initiated proceedings thereon.

On the contrary, the learned counsel for the respondent, while opposing the submissions of the learned counsel for the petitioner would reiterate the stand which has been taken by the respondent in the objections filed to the petition and would insist for dismissal of the petition.

6. Before proceeding to advert to the rival submissions of the appearing counsel for the parties