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2009 DIGILAW 880 (AP)

TUMU VENKATESWARA REDDY v. STATE OF A. P.

2009-12-04

SAMUDRALA GOVINDARAJULU

body2009
( 1 ) THIS criminal petition is filed by the accused Nos. 3, 4 and 6 under Section 482 of the Code of Criminal Procedure for quashing proceedings in C. C. No. 270 of 2004 on the file of IX Metropolitan Magistrate, bheemunipatnam, Visakhapatnam District relating to the offence punishable under section 27 (d) of the Drugs and Cosmetics act, 1940 for contravention of Section 18 (a) (i)read with Section 16 of the said Act. ( 2 ) DRUGS Inspector, Anakapalle collected sample of CLOXEM KID Tablets with batch no. CMK 001, manufacturing date 11/2000, expiry date 10/2002, manufactured by m/s. Relieance Remedies (A-1), on 17. 12. 2001 from M/s. Sai Rajendra Medical Agencies, tagarapuvalasa and sent the same to the government Analyst, Drugs Control laboratory, Hyderabad for analysis. After analysis, the Government Analyst sent report opining that the drug was not of standard quality as it does not conform the assay for Cloxacillin as per the labelled claim i. e. , the tablet contained only 60% of the drug. Thereupon, after following procedure, the drugs Inspector filed complaint in the lower court against A-1, its Managing Parmer A-2 and partners A-3 to A-6. Questioning the same, A-3, A-4 and A-6 approached this court by way of this petition. ( 3 ) IT is contended by the petitioners' counsel that the petitioners viz. , A-3, A-4 and A-6 are only partners and were not in-charge of day-to-day business or affairs of a-1 firm and it was only A-2 who was in-charge of affairs of the firm and the manufacturing process and that therefore prosecuting the petitioners is not in accordance with law. On the other hand, it is contended by the Public Prosecutor that all the partners are entitled to participate in running business of the firm and that therefore all of them are liable including a-2 who is managing partner. ( 4 ) THERE is no provision in the Drugs and cosmetics Act dealing with the case of partnership firm and its partners. Section 34 of the Act deals with offences by companies. Even under Section 34 of the Act, it is only the person or persons who are in-charge of company and was responsible for conduct of business of the company as well as the company are deemed to be guilty of the offence, and not all persons connected with the company. Section 34 of the Act deals with offences by companies. Even under Section 34 of the Act, it is only the person or persons who are in-charge of company and was responsible for conduct of business of the company as well as the company are deemed to be guilty of the offence, and not all persons connected with the company. At this stage, it may be noted that as per drug licence given by Assistant director, Drugs Control Administration, regional Office (OTC), Vengalrao Nagar, hyderabad, though the licence was given to a-1 as if it is a private limited company, the competent person named in the licence is kota Srinivasulu Reddy who is no other than A-2. ( 5 ) THE petitioners' counsel placed reliance on certain reported decisions of the Supreme court as well as this Court on this point. In state of Karnataka v. Pratap Chand and others (1) AIR 1981 SC 872 , it was held by the apex court that partner of the firm who was in over-all control of day-to-day business of the firm would alone be liable to be convicted and a partner who was not in such control could not be proceeded with merely because he had right of participation in business of the firm under terms of partnership deed. This decision repels contention of the Public prosecutor that the petitioners who are partners have right of participation in business of A-1 firm and therefore liable. ( 6 ) THIS Court also in N. Dandapani v. State of a. P. , (2) 2005 (1) ALT (Crl.) 465 (A. P.) held that even as per Section34 (i) of the Act, it is apparent that only those persons who were in-charge of and responsible to the company for conduct of business of the company, are liable to be punished. ( 7 ) HAVING regard to the above reported decisions of the Supreme Court as well as this Court, the field is not left to open to the prosecution to contend otherwise. Therefore, i find that the petitioners viz. , A-3, A-4 and a-6 who are mere partners of A-1 firm and who have nothing to do with manufacturing process cannot be impleaded in the complaint for punishing them. Therefore, i find that the petitioners viz. , A-3, A-4 and a-6 who are mere partners of A-1 firm and who have nothing to do with manufacturing process cannot be impleaded in the complaint for punishing them. ( 8 ) IN the result, the Criminal Petition is allowed quashing proceedings in C. C. No. 270 of 2004 on the file of IX Metropolitan magistrate, Bheemunipatnam, visakhapatnam district in so far as the petitioners viz. , A-3, A-4 and A-6 are concerned. Petition is allowed