Vicarious liability under the Drugs and Cosmetics Act, 1940 arises if the person was in charge and responsible for the day-to-day affairs of the company at the time of the offence, and the company must be made an accused for vicarious liability to apply.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

1. This petition has been filed for quashing the entire criminal proceeding as well as the order dated 13.12.2013 passed by the learned Chief Judicial Magistrate at Chaibasa in connection with Complaint Case being C/7-86 of 2013 whereby learned court has been pleased to find a prima facie case under sections 27(D), 18(a)(i) of the Drugs and Cosmetics Act, 1940 against the petitioners and accordingly took cognizance of the said offence and issued summons to the petitioners to face trial, pending in the court learned Chief Judicial Magistrate, at Chaibasa.

2. The complaint has been filed by the Drug Inspector alleging therein that on 28.02.2014 in presence of Child Development and Project Officer, Khuntipani, Store of M/s Aushadhi Bhandar, ICDS Project, Khuntipani, West Singhbhum was inspected and sample of Paracetamol syrup IP, B. No. ML12-017 was collected for its examination. The sample was sent to Govt. Analyst, State Medicine Test Laboratory, Namkum, Ranchi, where the chemical examination of the said sample was done and the report dated 22.3.2013 was received and the sample was found not of standard quality as the oral liquid was not homogenous, which duly informed to the CDPO, Khuntipani, Singhbhum West and she was requested to make available the sale register of the said medicine and she was further requested to stop the sale/distribution/use of the said medicine. On 10.05.2013, the representative of the medicine manufacturer company had received a part of the sealed sample. M/s HLL Life Care Limited, Bekar Bandh, Gupteshwar Complex, Dhanbad on 31.03.2013 had provided the required document to the complainant. The manufacturing and distribution of the sub-standard medicine is hazardous and cognizable offence and therefore the present case has been lodged against the accused persons.

3. Mr. Mazumdar, the learned counsel for the petitioners submits that lodging of the complaint, the learned CJM, Chaibasa has taken cognizance under sections 27(D), 18(a)(i) of the Drugs and Cosmetics Act, 1940 against the petitioners. He further submits that the petitioners are the Directors of M/s Maiden Pharmaceuticals Limited. He submits that there is no averments on the allegation in the complaint against the petitioners who are the Directors of the said company/firm. He submits that in view of section 34 of the Drugs and Cosmetics Act, 1940 (hereinafter referred to be as the Act.), the persons who are Incharge and looking after the day to day affairs of the company is only required to be prosecuted. He submits that there is no averments in this regard. In the complaint there is no averments that the petitioners are looking after the day to day affairs of the company. To buttress this argument he relied in the case of State of Haryana vs. Brij Lal Mittal and Others, (1998) 5 SCC 343 and relied on paragraph no. 8 of the said judgment which is quoted herein-below:

“8. Nonetheless, we find that the impugned judgment of the High Court has got to be upheld for an altogether different reason. Admittedly, the three respondents were being prosecuted as directors of the manufacturers with the aid of Section 34(1) of the Act which reads as under:

“34. Offences by companies:

(1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.”

It is thus seen that the vicarious liability of a person for being prosecuted for an offence committed under the Act by a co