JUDGMENT

V.S. SIRPURKAR, J.

1. Leave granted.

2. The present appeal challenges the order of the High Court whereby the petition under Section 482 Cr.P.C. filed by the company and its directors (appellants herein) was dismissed by the High Court. The High Court took the view that the directors are responsible for the affairs of the company and, therefore, when a drug manufactured by the company was found to be defective, all the directors could be prosecuted. The High Court, however, left it to the concerned parties to prove before the Trial Court that they were not in any way responsible for the manufacture process. The High Court proceeded on the basis of specific language of Section 34(2) of the Drugs & Cosmetics Act, 1940 (for short "the Act") and proceeded to hold that the complaint filed against the directors could not be disposed of under Section 482 Cr.P.C. as it required appreciation of the facts on the basis of the evidence to be led before the Trial Court.

3. When the matter came up before this Court, the Special Leave Petition filed on behalf of the company and Managing Director - Himanshu C. Patel was dismissed. However, notice was issued in case of the remaining appellants No. 3 to 7.

4. Mr. H.A. Raichura, learned Counsel appearing for the appellants contends before us that from the reading of language of Section 34(2) of the Act, it would be apparent that thereby criminal liability is created against the directors but their active involvement in the offence has to be pleaded and established. He contends that, in fact, the complaint was totally silent about such involvement of any of the directors and a mere bald statement appeared in the complaint in para 6. He, therefore, prays that the High Court erred in not quashing the complaint. He relied on the decision of this case in the State of Haryana Vs. Brij lal Mittal & Ors. [1998 (5) SCC 343] and argues that the said case squarely covers the present case also.

5. Para 6 of the complaint reads as under:-

"Looking to the testing report of above medicine Denilyte M 506072, presence of fungus is noted, hence it has been declared as uneven. Therefore, by manufacturing of this medicine for sale, firm of M/s. Denis Chem Lab. Ltd., Chhatral, Ta. Kalol, District Gandhinagar and its Directors have made breach of this act. Therefore, this is punitive offence at first sight." (Emphasis supplied).

In para 8 of the complaint, it has been contended as under:-

"Thus, I request to carry out legal proceedings against above accused M/s. Denis Chem Lab Ltd., Block No. 457, Chhatral, Ta. Kalol, District Gandhinagar and its directors." Earlier to that, in para 4 of the complaint, the complainant had referred to the written representation given by accused No. 1 - director of the firm and accused No. 2 Himansu C. Patel and Quality Assurance Manager - Mr. Mehul M. Rao during the inspection to the inspecting authorities. That representation is not before us.

6. We have gone through the decision of Brij Lal Mittal (supra). In Brij Lal Mittal case (supra), the offence complained of was under Section 27 of the Act. The High Court had quashed the proceedings therein on the ground that the prosecution was launched after shelf-life of drugs had expired in the month of July, 1991 and as a consequence thereof, the accused were deprived of their right under Section 25 (4) of the Act to get the drugs tested by Central Drugs Laboratory. This Court did not agree with the reasoning of the High Court, however, upheld the quashing of the proceedings. The Court went on to hold as under:

"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:

`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, wa