Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 687 (RAJ)

Dr. Amrita Patel v. State of Rajasthan

2012-03-20

SANDEEP MEHTA

body2012
JUDGMENT 1. - The instant misc. petition has been filed on behalf of the petitioners seeking quashing of the proceedings going on against them in the Court of learned Chief Judicial Magistrate, Bikaner for the offences under Sections 18(A)(i), 18(A)(iv), 16(1)(a) read with Sections 17A(c), 17A(e), 17B(d), Sections 27(b)(i), 27(c) and 27(d) of the Drugs and Cosmetics Act, 1940. 2. Briefly stated the facts necessary for the disposal of this misc. petition are that the petitioners are the Non-Executive Chairman, the Managing Director and Director respectively of a company named Indian Immunologicals Limited. The company is said to be a subsidiary of the National Dairy Development Board established under the National Dairy Development Board Act, 1987. The company was involved in the manufacturing of drugs, vaccines and animal health products being used by the dairy farmers. The Drug Inspector, Bikaner is said to have taken a sample of a sheep pox vaccine from the premises of a shop named M/s. Sona Medicos, Bikaner on 22.12.2004. On analysis from the Government Analyst, IVRI, it is said that the said vaccine was found to sub- standard as per the report of the Analyst, IVRI dated 19.9.2005. 3. After the necessary enquiry etc., a complaint has been filed against the Vendor, the Manufacturer and the petitioner Company and its Directors etc. in the Court of learned Chief Judicial Magistrate, Bikaner for the aforesaid offences. 4. The instant misc. petition has been filed seeking quashing of the proceedings of the complaint qua the petitioners. The grounds as averred in the misc. petitioner are that there are no averments or allegations in the complaint that the petitioners herein were responsible for the day to day affairs of the company and thus in the absence of any such averments and allegations, the prosecution of the Directors or the partners of the firm is impermissible. 5. Learned counsel for the petitioners submits that as per Section 34 of the Drugs and Cosmetics Act, 1940, there has to be a specific allegation or averment regarding the vicarious liability of a person being sought to be prosecuted for the offence committed by the company. The provisions of Section 34 of the Drugs and Cosmetics Act, 1940 are reproduced hereinbelow : "34. The provisions of Section 34 of the Drugs and Cosmetics Act, 1940 are reproduced hereinbelow : "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. 6. It is submitted that such prosecution can only be permitted when there is a specific allegation supported by evidence to the effect that the Director or the Partner of the firm as the case may be who is sought to be prosecuted was responsible for day to day affairs of the Company or the Firm. Pointing to the contents of the complaint, learned counsel for the petitioners submitted that from the very nature of the assignments attributed to the three petitioners, it can very well be inferred that the petitioners were not responsible for the day to day affairs of the company in relation to the manufacture of the seized vaccine. It is submitted that the petitioner No. 1 is the Non-Executive Chairman of the Company and is also the Chairman of the Natinoal Dairy Development Board, Anand, Gujarat. It is submitted that the petitioner No. 1 is the Non-Executive Chairman of the Company and is also the Chairman of the Natinoal Dairy Development Board, Anand, Gujarat. The petitioner No. 3 is also the Director of the Indian Immunologicals Limited and also Managing Director, National Dairy Development Board, NDDB Campus, Anand, Gujarat. It is submitted that the petitioner No. 2 is the Managing Director of Indian Immunologicals Limited, Hyderabad. In the complaint, a specific allegation has been made against accused Nos. 9, 10 and 11 regarding them being responsible persons on behalf of the manufacturing company and thus the prosecution of the petitioners simply because of them being the Directors' of the Company is not permissible.Reliance has been placed in support of the arguments on the decision of the Hon'ble Apex Court in the case of Pepsico Indian Holdings Pvt. Ltd. v. Food Inspector and Anr., reported in (2011) 1 SCC 176 and State of Haryana v. Brij Lal Mittal & Ors., reported in AIR 1998 SC 2327 . Thus, it is prayed that the prosecution of the petitioners in the impugned complaint amounts to an abuse of the process of the Court deserves to be quashed.Per contra, learned Public Prosecutor has opposed the misc. petition and submits that the challenge to the proceedings of the complaint is premature. Learned Public Prosecutor submits that there are specific averments made by the Drug Inspector against the petitioners in the complaint and that in view of the specific allegations and averments made in the complaint in relation to the participation of the petitioners in the day to day affairs of the firm, no interference is called for by way of instant misc. petition under Section 482 Criminal Procedure Code for quashing of the valid proceedings initiated under the Drugs and Cosmetics Act, 1940. 7. A reply has been filed to the misc. petition as well. A specific plea has been taken in i the reply that the petitioner No. 2 has submitted an affidavit sworn by him to the effect that he, the deponent and Dr. (Ms.) Amrita Hirubhai Patel and Shri Deepak Tikku shall be responsible towards the affairs of the firm as per Section 34 of the Drugs and Cosmetic Act, 1940. A specific plea has been taken in i the reply that the petitioner No. 2 has submitted an affidavit sworn by him to the effect that he, the deponent and Dr. (Ms.) Amrita Hirubhai Patel and Shri Deepak Tikku shall be responsible towards the affairs of the firm as per Section 34 of the Drugs and Cosmetic Act, 1940. Thus, it was pleaded in the reply that the petitioners having accepted their responsibility towards the day to day affairs of the firm cannot escape from their liability or the prosecution merely because of specific allegation regarding liability of the petitioners not being made in the complaint. 8. I have heard learned counsel for the parties, perused the impugned complaint, the documents filed in support of the petition as well as the reply and have given my thoughtful consideration to the arguments advanced at the bar. 9. For the proper consideration of the arguments advanced at the bar in relation to the liability attributed to the petitioners, the allegations made in the complaint in this regard needs to be considered. The allegations read as quoted below : " vfHk;qDr la[;k 1 vfHk;qDr QeZ la[;k 2 dk ekfyd o ;ksX; O;fDr gSA vfHk;qDr la[;k 3 vfHk;qDr QeZ la[;k 5 dk ikoj vkWQ vVuhZ gksYMj ,oa ftEesnkj O;fDr gS rFkk vfHk;qDr la[;k 4 vfHk;qDr QeZ la[;k 5 dk ;ksX; O;fDr gS vfHk;qDr la[;k 6 vfHk;qDr QeZ la[;k 8 ikoj vkWQ vVuhZ gksYMj ,oa ftEesnkj o ;ksX; O;fDr gS rFkk vfHk;qDr la[;k 7 vfHk;qDr QeZ la[;k 8 dk ;ksX; O;fDr gSA vfHk;qDr la[;k 9] 10 rFkk 11 vfHk;qDr QeZ la[;k 12 ds dze'k% ,DthD;wfVo Mk;jsDVj o ftEesnkj O;fDr] bapktZ DokfyVh dUV~ksy ,.M ,ukykbZfll( rFkk eSU;wQSDpfjax bUpktZ gSA vfHk;qDr la[;k 13 ls 15 QeZ vfHk;qDr la[;k 5 ds fy, ftEesnkj gSA " 10. Thus, a general and omnibus allegation has been made after showing the designations of the accused in the concerned firms/companies and so far as the company IIL is concerned, it has been mentioned that the accused Nos. 13 to 15 i.e. the petitioners are responsible to the firm IIL, which is accused No. 5 in the complaint. Suffice it to say that the averments made in the complaint are contrary to the description of the accused as given in the title of the complaint. 13 to 15 i.e. the petitioners are responsible to the firm IIL, which is accused No. 5 in the complaint. Suffice it to say that the averments made in the complaint are contrary to the description of the accused as given in the title of the complaint. In the title of the complaint, the authorised persons of the firm IIL, Jaipur are stated to be accused Nos. 3 and 4 i.e. Shri Suraj Karan Surana and Shri Somendra Kumar Jain. The petitioners herein are the Directors of the company located at Hyderabad and it has been stated that they are also responsible for the IIL, Jaipur but no basis or material has been set out in the complaint or in support of the averment regarding the responsibility of the petitioners in relation to the accused No. 5, the firm, which is located at Jaipur. 11. Resultantly, this Court is of the opinion that the averments made in the complaint regarding the responsibility of the petitioners qua the company are self contradictory. That apart, the drug in question is said to have been manufactured by IIL, Hyderabad. The responsible persons for the manufacturing firm are stated to be the accused mentioned at Serial No. 9 Dr. V.A. Srinivasan, No.10 Dr. K. Ananda Rao and No. 11 Shri T. Sudarshan. 12. Thus, it is obvious that tested on the touch stone of the decisions referred to above, the averments made in the complaint regarding the responsibility of the petitioners No. 1 and 3 does stand to scrutiny. But so far as the petitioner No. 2 is concerned, as has been mentioned in the complaint itself, the petitioner No. 2 is the Managing Director of the manufacturing company which is located at Hyderabad. The petitioner No. 2 has also submitted an affidavit to the authority concerned as stated in the reply, taking upon himself the responsibility of the firm as per Section 34 of the Drugs and Cosmetics Act, 1940. Though, the affidavit has also been attributed to the petitioners Nos. 1 and 3 as well but a bare reading of the averments of the reply reveals that the affidavit has been sworn by the petitioner No. 2 only. That apart, the petitioners Nos. 1 and 3 are admittedly the Chairman and the Director, IIL and also the Chairman and Managing Director respectively of the National Dairy Development Board located at Anand, Gujarat. That apart, the petitioners Nos. 1 and 3 are admittedly the Chairman and the Director, IIL and also the Chairman and Managing Director respectively of the National Dairy Development Board located at Anand, Gujarat. Thus, their, participation and their responsibility towards the manufacturing company located at Hyderabad appears to be far too remote and in view of the over all facts and circumstances of the case, the prosecution of these two petitioners on the basis of the impugned complaint does not appear to be justified. 13. Consequently, the proceedings of the impugned complaint No. 112/2007 so far as it relates to the petitioners Nos. 1 and 3 are hereby quashed and set aside. So far as the petitioner No. 2 is concerned, the allegations made in the complaint and the affidavit submitted by him do reveal that there is sufficient material available on the record of the case for prosecuting him for the aforesaid offences. Resultantly, the misc. petition succeeds qua the petitioners Nos. 1 and 3 and the same is rejected qua the petitioner No. 2. Stay petition also stands disposed of.Petition partly allowed. *******