The central legal point established in the judgment is the requirement for specific averments about the role of individuals in charge of a company's affairs and the need for the company to be made an accused for vicarious liability to apply under Section 34 of the Drugs and Cosmetics Act, 1940.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

1. Pursuant to the order dated 09.01.2019, I.A. No. 304 of 2019 has been filed for amendment in the prayer portion of the main petition.

2. Learned counsel appearing for the petitioners submits that due to inadvertence, the order taking cognizance dated 29.01.2014 has not been challenged, that’s why the aforesaid I.A. has been filed.

3. Mr. Ravi Prakash, learned Spl. P.P. appearing for the State has no serious objection, if the prayer in the said I.A. is allowed.

4. In view of above facts and also to avoid the multiplicity of litigation, the prayer made in the I.A. is allowed.

5. The aforesaid interlocutory application is allowed and disposed of.

6. Learned counsel appearing for the petitioners shall make necessary correction in para-1 of the petition in course of the day.

7. Heard Mr. Amit Kumar, learned counsel appearing for the petitioners and Mr. Ravi Prakash, learned Spl. P.P. for the State.

8. This petition has been filed for quashing of the complaint as well as the entire criminal proceeding, including the order taking cognizance dated 29.01.2014, in connection with C/2 Case No. 37 of 2014, whereby, cognizance for the offence under Sections 18(A)(i), 27(D) of the Drugs and Cosmetic Act, 1940, has been taken against the petitioners, pending in the Court of learned C.J.M. Jamshedpur.

9. On the written complaint of the informant, the case was lodged. He made an application, stating therein that during inspection Almetfor Brand-Metformin Hydrochloride Tablet IP 500 mg bearing Batch No. ATMT-1207 Mft. Date 8/2012 and Expiry Date 07/2015 was alleged by the complainant to be found not of standard quality’ and the case was instituted against the petitioners.

10. It has been alleged that the sample was collected and sent for examination to the Government Analyst and pursuant to the receiving of the report, the case was lodged.

11. Mr. Amit Kumar, learned counsel appearing for the petitioners submits that on lodging of the complaint, the learned CJM, Jamshedpur has taken cognizance under sections 18(A)(i) and 27(D) of the Drugs and Cosmetics Act, 1940 against the petitioners. He further submits that the petitioners are the Directors of M/s Alves Healthcare Pvt. Ltd. He submits that there is no averments on the allegation in the complaint against the petitioners, who are 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 In-charge 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