JUDGMENT 1. Heard Shri Khapre, the learned counsel appearing for the petitioner and Ms. Kalyani Deshpande, learned APP for respondent. 2. In a complaint which is a Criminal Case No.269 of 2000 instituted in the Court of Chief Judicial Magistrate, Chandrapur on 26.07.2000, the applicants are joined as accused Nos. 7 and 8 for committing offence under Sections 18(a)(i) read with 16 of the Drugs And Cosmetics Act, 1940, punishable under Section 27 of the said Act. This application challenges the entire complaint on the basis of which the prosecution is sought to be initiated. 3. The matter was admitted by this Court on 03.10.2012 and the interim order passed by this Court staying the proceedings of the said complaint against the applicants has been continued. 4. The question as to whether the applicants can be prosecuted for the alleged offence is to be determined on the basis of the provision of Section 34 of the said Act, which deals with the offences by the Company. The said provision is reproduced below. "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 subsection 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 subsection (1), where an offence under this Act has been committed by a company and it is proved that 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. Explanation. - For the purpose 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." As per provision of subsection (1), where an offence under the 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. 5. We have perused the copy of the complaint at Annexure1 to the petition. There is no averment in the complaint that at the time of commission of offence, the applicants were in charge of and responsible to the company for the conduct of the business of the company. The averment on the basis of partnership deed made in the application is that, the applicants were the sleeping partners and were not in charge of and responsible to the company for the conduct of the business. This is uncontroverted position and therefore, apparently, the provision of Section 34(1) of the said Act is not attracted so far as the present applicants are concerned. 6. It is not the case that the applicants are the competent persons in respect of M/s. Girnar Pharma against whom the offences in question are alleged. Para 6 of the complaint makes a specific averment as under; '' Accused No.5 is the competent person of M/s. Girnar Pharma, 28A, General Merchant Market, Gandibagh, Nagpur. 7. The accused No. 5 is Sheshrao Ramchandra Shivankar. Apart from this, the applicants cannot be the competent persons as they do not possess the necessary qualification prescribed under clause (ii) in the second proviso below subrule (2) of Rule 64 of the said Act. Hence, they cannot be prosecuted in the capacity as the competent persons. 8. In view of above, the petition is required to be allowed. Hence, we pass the following order. The proceedings of Criminal Case No. 269 of 2000 pending in the Court of Chief Judicial Magistrate, Chandrapur, are quashed and set aside so far as the present applicants are concerned, who are arrayed as accused Nos. 7 and 8. No order as to costs.