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Himachal Pradesh High Court · body

2003 DIGILAW 174 (HP)

MUNISH SHARMA v. STATE OF H. P.

2003-07-04

K.C.SOOD

body2003
JUDGMENT Kuldip Chand Sood, J.—This petition under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India is directed against the proceedings initiated against petitioner Munish Sharma who is a partner in the firm M/s. Edifice Laboratories at Ludhiana. The petitioner prays that the proceedings initiated against him by the learned Judicial Magistrate 1st Class, Bilaspur, may be quashed and he be discharged. 2. Necessary facts for the disposal of this petition are: 3. Drugs Inspector for the District of Bilaspur lifted sample of drugs "Furazolidone tablets I.P.B. No. 2993, manufactured by M/s. Edifice Laboratories, 303-A, New Tagore Nagar, Ludhiana (Punjab), from the stores of District Hospital at Bilaspur on 30th September, 1997. The sample was found to be of sub-standard quality by the Government Analyst, Kandaghat. M/s. Edifice Laboratories were asked to supply the necessary records of sub-standard drugs relating to manufacture and testing of the drug and to explain as to why legal proceedings be not initiated against the firm for manufacturing sub-standard drugs. They were also supplied with the copies of the invoices by which the drug was purchased by the Government of Himachal Pradesh/The Company supplied the testing records of the drug in question but manufacturing records were not sent. The Drugs Controller Himachal Pradesh advised the Drugs Inspector to initiate legal proceedings against the firm and accordingly accorded permission to launch prosecution. It is in this background that a complaint was made, by the Drugs Inspector, under Section 18(a)(i) read with Section 27(d) of the Drugs and Cosmetics Act, 1940, (Drugs Act in short). 4. It transpires that on the issuance of summons by the learned trial Magistrate, a report came that this particular company was a partnership firm and not a company and had no Managing Director to whom summons were directed. On 28th November, 2001 Drugs Inspector moved an application before the learned Judicial Magistrate saying that the proper address of the accused was that "Munish Sharma son of Shri L.N. Sharma, who is managing the activities of the above firm and is responsible for its day to day activities". 5. The learned trial Magistrate according directed the issuance of the summons to Shri Munish Sharma, the present petitioner. 6. 5. The learned trial Magistrate according directed the issuance of the summons to Shri Munish Sharma, the present petitioner. 6. The case of the petitioner is that the complaint does not show that he was incharge of the firm at material time and responsible to the partnership-firm for the conduct of its business. He maintains that merely because he happens to be one of the partners of the firm, cannot be a reason for his prosecution. According to the petitioner, the margin deficiency is so low and it could be a manual error as the petitioner got tested the medicine in question of the same batch from two different laboratories which have been approved by the States of Haryana and Uttar Pradesh. 7. Section 34 of the Drugs Act provides for the offences by the Companies, it reads : "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. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.—For the purposes of this section— (a) "company" means a body corporate, and includes a firm or other association of individuals; and (b) "director" in relation to a firm means a partner in the firm." (Emphasis given) 8. Explanation.—For the purposes of this section— (a) "company" means a body corporate, and includes a firm or other association of individuals; and (b) "director" in relation to a firm means a partner in the firm." (Emphasis given) 8. It may be noticed that if an offence under the Act has been committed by a company every person who at the relevant time was incharge of or 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. 9. The contention of Mr. Sharma is that there is no allegation in the complaint that the present petitioner was either incharge of or was responsible to the affairs of the partnership firm and therefore, the prosecution against the petitioner is mis-laid. He relying upon several authorities vehemently contended that in the absence of such allegation in the complaint, the petitioner cannot be proceeded against under the Drugs Act. It is true that in the complaint lodged by the complainant, there is no allegation that the present petitioner was incharge of the company or has anything to do with the manufacture of the drugs or with the day to day affairs of the company. However, in an application the Drugs Inspector, as noticed earlier, brought to the notice of the learned Judicial Magistrate that it was the petitioner who was managing the activities of this Company and therefore, responsible for its day to day activities and that in the facts and circumstances, the summons be served upon the present petitioner. In view of these facts and circumstances, it cannot be said that there is no allegation that the petitioner was not concerned with the affairs of the partnership firm. The contention of the petitioner that he has nothing to do with the manufacture of the Drugs has to be tested by the evidence which may be led by the prosecution and in defence during the course of trial. 10. Mr. Sharma refers to State of Himachal Pradesh v. R.L. Jhamb and others, Cr.M.M.O. No. 23 of 1999, decided on 9th September, 1999. 10. Mr. Sharma refers to State of Himachal Pradesh v. R.L. Jhamb and others, Cr.M.M.O. No. 23 of 1999, decided on 9th September, 1999. In that case it was noticed that in the body of the complaint no plea was raised as to for what reason and on what basis the respondents who were Directors of the company were sought to be prosecuted. In the head of the complaint the respondents were described as Directors of M/s. Well Cross India Private Limited which, indicated that the Directors were to be prosecuted merely for the reasons that they happened to be the Directors of the Manufacturing Company. In the present case, as already noticed, there is material on record to show that Drugs Inspector though had not made specific allegations against the petitioner but at a later date, it was brought on record that the petitioner was the person responsible for the activities of this manufacturing firm. 11. In this view of the matter, prosecution launched against the petitioner cannot be said to be either bad in law or against the provisions of the Drugs Act. However, it would be for the petitioner to show during the course of trial, as maintained by him, that he was not, at material time, concerned with the conduct of the partnership business. 12. The petition being merit less is dismissed. 13. The respondent-accused shall appear before the learned trial Magistrate on 30th July, 2003. The record of the trial Court shall be remitted back immediately so as to reach by 25th July, 2003. Cr.M.P.No. 235 of 2003. 14. No order, in view of the order passed in the revision petition. The application is disposed of. Petition dismissed.