Under Section 34 Drugs and Cosmetics Act, company offence liability presumes against nominated responsible person and firm; other officers require specific role allegations, not mere designations.

JUDGMENT :

SANJAY DHAR, J.

01. By virtue of this judgment, the afore-titled five petitions under Section 482 of CrPC, involving common question of law are proposed to be disposed of.

02. Background facts:

(i) CRMC No. 450/2018

2.1. Through the medium of the present petition under Section 482 of CrPC, the petitioners, who have been impleaded as accused Nos. 1 to 3, 5 to 8 and 11 in the impugned complaint, have challenged the complaint registered as File No. 1208/Complaint with date of institution as 10.04.2018, filed by the respondent against them before the court of learned Chief Judicial Magistrate, Jammu, alleging commission of offences under Section 18 (a) (i) read with Section 27 (d) of the Drug and Cosmetics Act, 1940 (hereinafter to be referred to as “Act of 1940”). Challenge has also been thrown to order dated 10.04.2018 passed by the learned Chief Judicial Magistrate, Jammu by virtue of which process has been issued against the petitioners and co-accused.

2.2. As per allegations made in the impugned complaint, sample of drug Ceftriaxone Inj. I.P, Batch No. CFXM 16041, manufacturing date 05/2016, expiry date: 04/2018, manufactured by the accused company M/s Theon Pharmaceuticals Ltd was found to be not of standard quality upon its analysis by the government analyst. As per the allegations made in the impugned complaint, petitioner No. 1 is the Managing Director of the accused company whereas, petitioners No. 2 and 3 are the whole time Directors of the accused company and as such, are responsible to the accused company and are also persons incharge of the business of the accused company. It is further averred in the impugned complaint that petitioner No. 4, 5, 6 and 7 are the other Directors of the accused company and they are also responsible to the accused company by virtue of their designation and they are the persons incharge of the business of the company. On the basis of these allegations, the petitioners are sought to be prosecuted for having committing the aforesaid offences.

(ii) CRMC No. 690/2017

2.3 Through the medium of the present petition, the petitioners have challenged the complaint registered as File No. 31 of 2017 with date of institution as 31.08.2017, filed by the respondent against them before the court of learned Judicial Magistrate 1st Class, Kishtwar, alleging commission of offences under Section 18 (a) (i) read with Section 27 (d) of the Drug and Cosmetics Act, 1940.

2.4 Petitioner No. 1 happens to be accused No. 2, petitioner No. 2 happens to be accused No. 3, petitioner No. 3 happens to be accused No. 5, petitioner No. 4 happens to be accused No. 6, petitioner No. 5 happens to be accused No. 7, petitioner No. 6 happens to be accused No. 8 and petitioner No. 7 happens to be accused No. 1 in the impugned complaint. It is alleged in the impugned complaint that upon analysis of sample of drug Glimepiride and Metformin Hydrochloride (SR) Tablets Batch No. GT160179, manufacturing date 02/2016, expiry date: 01/2018, manufactured by the accused company M/s Theon Pharmaceuticals Ltd., it was found to be not of standard quality.

2.5 According to the complainant, petitioner No. 7 happens to be the Managing Director of the accused company whereas, petitioners No. 1 and 2 are the Whole Time Directors of the accused company, petitioners No. 3 and 6 are the Additional Directors of the accused company whereas, petitioners No. 4 and 5 are the Directors of the accused company and in that capacity they have been arraigned as accused.

(iii) CRMC No. 720/2017

2.6 Through the medium of the present petition, the petitioners have challenged the complaint registered as File No. 31 of 2017 with date of institution