JUDGMENT 1. - Instant Misc. petition under Section 482 Criminal Procedure Code is directed against taking cognisance of offence under Section 18(1)(i) and 18(a)(vi) of Drugs and Cosmetics Act, 1940 ("the Act") vide order dated 28.5.1999 and summoning petitioner in Criminal Case No. 102/1999 vide order dated 15.7.1999 of Chief Judicial Magistrate, Bundi. 2. Petitioner Nos. 1 and 2 (accused No. 3 and 4 in complaint) are Managing Director and Director Burroughs Welcome (India) Ltd. ("Company") which incorporated under Companies Act and engaged in manufacturing of drugs and medicines. 3. On 30.9.1997, Drugs Inspector visited M/s. Janta Medical Hall, Bundi of which Smt. Razia Bai is Proprietor and took sample of "Calpol Paediatrics Suspension Syrup" bearing Batch No. K 112 with manufacturing date June, 1997 and expiry date May, 1999. Sample was sent for analysis to State Public Analyst, Jaipur who vide report dated 28.2.1998 opined that sample taken on 30.9.1997 does not conform to the claim with respect to "4-amino-phenol" a copy whereof along with show cause notice was sent by Drugs Inspector to M/s. Nainani Medico who forwarded it to petitioners in response whereof, petitioners sent letter dated 30.11.1998 controverting report of public analyst. 4. It is pertinent to mention that the petitioner Company had got the sample analysed at Kemwell Ltd. Bangalore, where produced was being manufactured under licence and after analysis of sample by a Government approved public Testing Laboratory in Bangalore, its report was positive and proves that sample does conform to the pharmacopoeia requirement with respect to "4-amino- phenol". 5. It has come on record that after public analyst report dated 23.2.1998 being controverted by petitioners, Drugs Inspector moved an application on 1.4.1999 to the learned Magistrate seeking direction for re-analysis of sample by Central Drugs Laboratory but on 5.4.1999, the application was rejected on the premise that no complaint has been filed; hence direction cannot be issued. Ultimately, on 28.5.1999, Drugs Inspector filed complaint for prosecution against petitioners as well as other accused for offence under Sections 18(a)(i) and 18(a)(vi) of the Act and also making prayer therein to send sample for re-analysis by Central Laboratory. Ultimately, on 28.5.1999, Drugs Inspector filed complaint for prosecution against petitioners as well as other accused for offence under Sections 18(a)(i) and 18(a)(vi) of the Act and also making prayer therein to send sample for re-analysis by Central Laboratory. Be that as it may, referee sample was belatedly sent to analysis by Central Drugs Laboratory, which in its letter dated 4.6.1999 endorsed remarks ad infra : "No opinion could be given regarding the standard of the sample under Drugs and Cosmetics Acts and Rules as the sample was received on the last date of date of expiry (31.5.1999) and could not be tested before the said expiry date." However, the complaint was registered and learned Magistrate took cognisance of offences (supra) and issued process against petitioners and other accused vide order dated 15.7.1999. Hence this petition. 6. Counsel for petitioner submits that there is no allegation in entire complaint against petitioners as to how and in what manner they were in-charge of and responsible for conduct of business of the Company, which requires necessary ingredient as contemplated in Section 34 of the Act in order to launch prosecution against the Company for holding it guilty of offences; which are completely lacking in instant case and a vague reference of responsibility is not sufficient compliance of mandatory requirement under Section 34 of the Act. In support, Counsel placed reliance upon decision of Apex Court in Municipal Corporation Delhi v. Ram K. Rohtagi AIR 1983 Supreme Court 67 ; State of Haryana v. Brijlal Mittal AIR 1998 Supreme Court 2327 and of this Court in Bharat Insecticides Ltd. v. State of Rajasthan 1996(1) RLR 349 and M/s. Cadila Health Care Ltd. v. State 2007(1) RLR 389. 7. 7. Counsel further submits that once State Public Analyst report was disputed by petitioners sample was required to be sent for re-analysis through Central Laboratory as per its report dated 4.6.1999, sample could not have been retested on the premise that it was received at the fag end of expiry date of sample; and in absence of report of Central Drugs Laboratory, State Public Analyst report could not be considered to be conclusive proof, right of accused provided under Section 25(4) of the Act has been infringed and once shelf life of drug sample has expired, allowing the complaint to continue for prosecution of petitioners, in the facts of instant case, will be nothing but an abuse of process of law and, thus proceedings impugned deserves to be quashed and set aside. 8. Public Prosecutor supported the order impugned and submits that all these objections raised hereby can be agitated in course of trial and since complaint discloses commission of offence, summons have rightly been issued to the offenders and during trial they will get opportunity to satisfy the Court about act of commission of offences alleged against them; and as such no error has been committed while taking cognisance impugned and this petition deserves to be dismissed. 9. I have considered contention of counsel for both the parties and with their assistance examined material on record. It is true that proceedings against accused at initial stage is ordinarily not to be interfere with but if on the face of complaint which lacks of material particulars for commission of offence under the Act, the court should not be hesitant to invoke powers under Section 482, Criminal Procedure Code. 10. As regards legal proposition on two fold grounds urged at the bar, it stands settled by virtue of a number of decisions of Apex Court in State of Haryana v. Brijlal Mittal (supra) Apex Court observed: "It is thus seen that the vicarious liability of a person for being prosecuted for an offence committed under the Act by a company arises if at the material time he was in-charge of and was also responsible to the company for the conduct of its business. Simply because a person is a director of the company it does not necessarily mean that he fulfills both the above requirements so as to make him liable. Simply because a person is a director of the company it does not necessarily mean that he fulfills both the above requirements so as to make him liable. Conversely, without being a director a person can be in-charge of and responsible to the company for the conduct of its business. From the complaint in question we, however, find that except a bald statement that the respondents were directors of the manufacturers, there is no other allegation to indicate, even prima facie, that they were in-charge of the company and also responsible to the company for the conduct of its business. 11. In M/s. Cadila Health Care Ltd. v. State (supra) this court (DB) observed while examining scope of Section 34 of the Act ad infra : "21. The crucial test which has been laid down by the Hon'ble Supreme Court on the issue of Director being in-charge of and responsible to the company for the conduct of business of the company as required under Section 34 of the Act is that the director is concerned with the day to day working of the company, or in other words, for over all control of the day to day business of the company or firm which excludes Directors connected with policy of the company. The Director may not be in charge of business of the company or may be in charge of business of the company but not over all in charge or may be in charge of only some part of business and further test as regards averments/allegations made in the complaint, the Supreme Court had laid down that words mentioned in the section are not the magic words but the substance of the allegations be read as a whole". This court has gone through entire complaint and finds that there is no averments in complaint which may disclose about petitioners being in-charge of and responsible for the conduct of business of the company for day to day or having over all control over business whereof in order to make them vicariously liable for commission of offence or their act was in connivance with other accused or attributable to the neglect.Para 10 having some relevance reads: (Matter in other language) It is settled that in criminal law, every role of vicarious liability should be spelled out in complaint, itself against persons sought to be made vicariously liable. There is no vicarious liability unless statute specifically provides for as in Section 34 of the Act. Material disclosed in instant complaint does not create any such vicarious liability qua petitioners. Hence order of Magistrate taking cognisance of offence and issuing process for summoning petitioners is, therefore, without any basis. 12. That apart in instant case, sample of drug seized and sealed was sent to the Central Drugs Laboratory, but in its letter dated 4.6.1999 the Laboratory endorsed remarks "No opinion could be given regarding standard of the sample under Drugs and Cosmetics Acts and Rules as it was received on the last date of date of expiry (31.5.1999) and could not be tested before the said expiry date", in absence of re-analysis, position of sample as analysed by State Public Analyst cannot be read as conclusive evidence of facts stated in the complaint in view whereof, statutory right of accused provided in Section 25(4) of the Act, has been infringed. Hence, in such circumstances to prosecute the petitioners in instant case is nothing but an abuse of process of law. 13. Consequently, misc. petition succeeds and is hereby allowed along with stay petition No.667/2000. Complaint and further proceedings as against petitioners initiated vide order dated 28.5.1999 and summoning them in Criminal Case No.102/1999 vide order dated 15.7.1999 of Chief Judicial Magistrate, Bundi are quashed and set aside. Record be sent back forthwith to the Court below.Petition allowed. *******