IMPORTANT POINT
A former director cannot be held liable for a company's actions if they were not in charge at the time of the alleged offence, and complaints filed beyond the limitation period constitute an abuse of process.

ORDER :

1. This Criminal Petition is filed under Section 482 of Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) seeking to quash the order dated 07.12.2023 passed in PRC No. 52 of 2022 on the file of the I Additional Junior Civil Judge cum I Additional Judicial Magistrate of First Class, at Miryalaguda.

2. The brief facts of the case are that the petitioner is the former Director of accused company, namely, M/s. Gena Pharmaceuticals Limited. The respondent/de facto complainant filed PRC No. 52 of 2022 alleging contraventions of Section 18(a) (vi) read with Rule 106 and Schedule J point No. 50 of the Drugs and Cosmetics Act, 1940 (for short ‘Act, 1940’) and Drugs and Cosmetics Rules, 1945 (for short ‘Rules 1945’) and also violation under Section 3(d) read with Schedule point 22 (Kidney Stones) of Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 (for short ‘Act 1954’) against accused company-M/s. Gena Pharmaceuticals.

3. As per the complaint averments, on 18.05.2015 on receipt of credible information, LWs. 3 and 4 went to the premises of M/s. Divya Medical and General Stores and on inspection of the said premises, they found stocks of 2 x 200 ML of potrate MB6 oral solution bearing details, such as, batch No. IT 1503, manufacturing date January 2015, expiry date June 2016 and manufactured by M/s. Gena Pharmaceuticals Limited, Door No. 7/2/1, Thakurpukur Road, Kolkata, West Bengal, marketed by M/s. Intas Pharmaceuticals Limited, Matoda, Ahmedabad, Gujarat-382210. It was alleged that the indication on the label of the drug as potrate MB6 for management of calcium oxalate nephrolithiasis (especially in hyper oxaluria cases and uric acid neptrolithiasis) violates Section 18(a) (vi) read with Rule 106, read with Schedule J point No. 50 of Act, 1940 and Rules 1945 and also Section 3(d) read with point 22 (kidney stones) of Act, 1954 (objectionable advertisements), thereby, the respondent/de facto complaint seized the drugs by listing them in Form-16 in the presence of witnesses under a cover of panchanama. For the offences as alleged, PRC, proceedings were initiated against the petitioner/accused stating that the accused company is represented by petitioner. Aggrieved thereby, this Criminal Petition is filed.

4. Heard Sri Zubin J.F. Poovathinkal, learned counsel for petitioner and Sri D. Arun Kumar, learned Additional Public Prosecutor, appearing for respondent.

5. Learned counsel for petitioner, submitted that the petitioner is neither accused in the complaint, nor the authorized representative of the accused company. He contended that on 09.08.2019 the National Company Law Tribunal, Kolkata, admitted application bearing No. CP(IB) No. 731/KB/2022 filed by the financial creditor under Section 7 of the Insolvency and Bankruptcy Code, 2016 for initiating CIRP against the accused company and vide CIRP commencement order, an Interim Resolution Professional (for short ‘IRP’) assumed charge and was in full control of the accused company. Consequently, the CIRP process was unsuccessful and the accused company is under liquation till date. He asserted that as per the company data of accused company on the website of Ministry of Corporate Affairs (MCA) (www.mca.gon.in) the petitioner was the Director of the company till 30.09.2019 whereas, PRC No. 52 of 2022 was registered before the trial Court on 24.11.2022 and on that date, the petitioner was not the Director of the accused company and the company was under complete control of liquidator, as such, the petitioner is incapacitated to represent the accused company in the PRC proceedings.

6. In addition, learned counsel for petitioner incessantly contended that no individual criminal liability was imposed on petitioner in the complaint lodged by the Drugs Inspector. He reiterated that the only person against whom the complaint was made is against the accused company. In support of the said contention, he relied on the judgment rendered by the Hon’ble Supreme Court in State of