JUDGMENT : 1. Both these quashment petitions filed under Section 561-A of the Code of Criminal Procedure, are directed against the Cognizance order dated 31st December 2015, passed by the Chief Judicial Magistrate, Jammu (hereinafter in short "CJM”) on a complaint filed by respondent through its Drug Inspector, Jammu Zone-I, under Section 18(a)(i) read with Section 27(d) of the Drug & Cosmetics Act, 1940 (hereinafter referred “Act”). The petitioners, who have been summoned to appear before the CJM, have also challenged the complaint filed before the CJM, on which cognizance was taken by the latter on 31st December 2015. 2. The petitioner in CRMC No. 29/2017 is an authorized signatory of a Private Limited Company by the name of Corona Remedies Private Limited (hereinafter "Stockist”), whereas petitioner in CRMC No. 564/2016 is managing partner of the partnership concern by the name of M/s Prosperity 6 Pharmaceuticals, Baddi, District Solan (Himachal Pradesh) (hereinafter referred as to "Manufacturer”). Both the petitioners are arraigned as accused by respondent-complainant, being distributor and manufacturer of the drug, which was found not meeting the prescribed standards by respondent. That, since order impugned as also impugned complaint, in which the petitioners in both these petitions are arraigned as accused, is common and also that they are aggrieved of the complaint and the order of cognizance, passed by the CJM, in the similar manner and have challenged the same on identical grounds, as such, both these petitions have been taken up for disposal together. 3. Before adverting to the grounds of challenge taken in these petitions, it would be necessary to briefly turn to the facts as are gatherable from the complaint filed by respondent. 4. The complaint has been filed by Drug Inspector, Jammu Zone-I, who is duly authorized in terms of SRO 137, dated 28th March 2013, issued under the Act. It is claimed in the complaint that on 5th February 2015, the then Drug Inspector, Jammu Zone-I, namely, Sanjay Bhat, conducted inspection of the areas falling under his jurisdiction and visited the premises of M/s Rajinder Medical Hall, Shalamar Road, Jammu. During the course of inspection of the premises, the then Drug Inspector, Jammu Zone-I, lifted samples of drugs for test and analysis from Government Analyst, Combined Food and Drug Laboratory (CFDL), Jammu. During the course of inspection of the premises, the then Drug Inspector, Jammu Zone-I, lifted samples of drugs for test and analysis from Government Analyst, Combined Food and Drug Laboratory (CFDL), Jammu. Amongst others, a sample of drug, i.e. Atzon-S, manufactured by M/s Prosperity 6 Pharmaceuticals, Baddi District Solan (H.P.), was also lifted on spot. On completing the requisite formalities and filling up the Form No. 17 on spot, the same was divided into four equal portions and each portion was sealed as per the procedure prescribed under the Act and Rules framed thereunder. It is claimed that the samples were taken, apportioned and sealed in presence of Shri Ranbir Gupta, a qualified person of the licenced premises, i.e. M/s Rajinder Medical Hall. The Form No. 18, dated 6th February 2015 was also filled up and sample was sent to Government, Analyst, CFDL. One sample portion of the drug in question was also sent to the Manufacturer. Thereafter in the month of May 2015, a Certificate of test/analysis from Government Analyst, CFDL, vide his communication No. DFCL/J/2015-16/245, dated 30th May 2015 on Form 13 under Section 25(1) of the Act, was received, in which the drug in question was declared to be not of standard quality as defined under the Act. The report further stated that the sample failed in the test for Clarity of Solution and Particulate Matter. Further investigation was conducted by respondent, who on disclosure by Ranbir Gupta of M/s Rajinder Medical Hall, found that drug in question had been supplied to M/s Rajinder Medical Hall by M/s Raj Medical Agency, who had purchased it from the petitioner in CRMC No. 29/2017-Stockist. It further revealed that the drug was actually manufactured by M/s Prosperity 6 Pharmaceuticals, i.e. petitioner in CRMC No. 564/2016. 5. Respondent, after completing all requisite formalities, providing copy of report of Government Analyst to petitioners herein as also other accused, laid a complaint before the CJM, Jammu. In the complaint, apart from petitioners, four others were arraigned as accused. The complaint was filed on 31st December 2015. The matter was considered by the CJM, who vide order dated 31st December 2015, took cognizance of the complaint and issued process to all the accused including petitioners herein. 6. In the complaint, apart from petitioners, four others were arraigned as accused. The complaint was filed on 31st December 2015. The matter was considered by the CJM, who vide order dated 31st December 2015, took cognizance of the complaint and issued process to all the accused including petitioners herein. 6. Petitioners are aggrieved of the complaint as also cognizance order passed by the CJM and seek to assail the same primarily on the following grounds : (i) That the complaint against petitioners is not maintainable unless the firm or the company, they represent, is also arraigned as party accused. The petitioner in CRMC No. 29/2017 claims that he is only authorised signatory of a Private Limited Company and the alleged offence, if any, is committed by the company and he can only be held vicariously liable. Similarly, petitioner in CRMC No. 564/2016 submits that he is only a partner in the firm and unless the firm is arraigned as accused, he cannot be prosecuted. Reliance in this regard has been placed on the provisions of Section 34 of the Act. (ii) That no offence under the Act is made out against the petitioners, for, nowhere in the complaint, the complainant has disclosed the actual role played by the petitioners nor there is any averment in the complaint that the petitioners were at the relevant point of time incharge of the affairs of the company/firm. (iii) That the complaint is liable to be quashed for failure of respondent-complainant to comply with the provisions of Section 25(3) of the Act, in that, the petitioners, despite having conveyed their intention to adduce evidence in controversion of the report of the Government Analyst, the sample was not sent to the Central Drugs Laboratory for re-examination and that the complaint was filed belatedly and by that time shell life of the drug in question had expired. It is, thus, contended that the valuable right to have the sample re-tested was denied to the petitioners. 7. Per contra, Mr. H.A. Siddique, learned Sr. AAG, appearing for respondent, refutes the submissions made on behalf of the petitioners. He submits that the procedure as laid down under Section 23 and 25 of the Act, was fully complied with. The drug in question, on testing, was found by the Government Analyst as not of standard quality. 7. Per contra, Mr. H.A. Siddique, learned Sr. AAG, appearing for respondent, refutes the submissions made on behalf of the petitioners. He submits that the procedure as laid down under Section 23 and 25 of the Act, was fully complied with. The drug in question, on testing, was found by the Government Analyst as not of standard quality. This was intimated to all the accused including the petitioners along with copy of test report of the Government Analyst, but they failed to convey their intention of adducing evidence in controversion of the report of the Government Analyst within stipulated time and accordingly complaint was filed before the Court. He also disputes the averment of petitioners that at the time of filing of the complaint before the Court, the shell life of the drug had expired. With regard to the contention of learned counsel for petitioners that in the absence of company and firm being arraigned as party accused, the complaint cannot proceed against petitioners, learned counsel submits that petitioners have been arraigned as accused on the ground that they were the persons incharge of the affairs of their respective company and firm, and were responsible to maintain the quality of drug in question. He further submits that non-arraignment of the company/firm is not fatal and the same can be arraigned even at this point of time. He, therefore, concludes his submission by saying that even if there is defect in institution of the complaint, the same is curable and does not in any way absolve the liability of petitioners. 8. He further submits that non-arraignment of the company/firm is not fatal and the same can be arraigned even at this point of time. He, therefore, concludes his submission by saying that even if there is defect in institution of the complaint, the same is curable and does not in any way absolve the liability of petitioners. 8. Having heard learned counsel for parties and perused the record, following questions arise for determination in these proceedings : (a) Whether in the light of Section 34 of the Act, the Directors of a Company or the partners of a Firm could be prosecuted under the Act without the company/firm having been arraigned as an accused; (b) Whether the Managing Director of a Company or Managing Partner of a Firm would be deemed to be incharge of the Company/Firm and responsible to the Company/Firm for conduct of its business and could be proceeded against even if there are no specific averments made in the complaint in this regard; and (c) Whether in the given facts and circumstances of the instant proceedings, the petitioners had notified their intention of adducing evidence in controversion of the Government Analyst report and whether the shell life of the drug, found substandard by the Government Analyst, had expired when the petitioners were summoned by the Court to appear before it and face the trial. 9. With a view to properly appreciate the points in issue and render proper decision, it would be necessary to first set out the provisions of Section 34 of the Act hereunder : "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." 10. Section 34, as is apparent from its bare perusal, is in pari materia with Section 141 of the Negotiable Instrument Act, 1881 (hereinafter "Act of 1881"). As a matter of fact, if we take out second proviso of sub-section (1) of Section 141 of the Act of 1881, the two Sections, i.e. Section 141 of Act of 1881 and 34 of the Act of 1940, would be verbatim same. Section 141 of the Act of 1881 came up for consideration before the Supreme Court in a reference made by a two Judge Bench of the Supreme Court to the larger Bench in the case of S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla & Anr., 2005 (8) SCC 89 . The questions, which were framed for determination by the larger Bench were in the following manner : "(a) whether for purposes of Section 141 of the Negotiable Instruments Act, 1881, it is sufficient if the substance of the allegation read as a whole fulfill the requirements of the said section and it is not necessary to specifically state in the complaint that the persons accused was in charge of, or responsible for, the conduct of the business of the company. (b) whether a director of a company would be deemed to be in charge of, and responsible to, the company for conduct of the business of the company and, therefore, deemed to be guilty of the offence unless he proves to the contrary. (b) whether a director of a company would be deemed to be in charge of, and responsible to, the company for conduct of the business of the company and, therefore, deemed to be guilty of the offence unless he proves to the contrary. (c) even if it is held that specific averments are necessary, whether in the absence of such averments the signatory of the cheque and or the Managing Directors of Joint Managing Director who admittedly would be in charge of the company and responsible to the company for conduct of its business could be proceeded against." 11. The three Judge Bench of the Supreme Court, after threadbare discussion of the provisions of Section 138 and 141 of the Act of 1881, and surveying the relevant case law on the subject, answered the aforesaid three questions in the following manner : "In view of the above discussion, our answers to the questions posed in the Reference are as under: (a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied. (b) The answer to question posed in sub-para (b) has to be in negative. Merely being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases. (c) The answer to question (c) has to be in affirmative. The question notes that the Managing Director or Joint Managing Director would be admittedly in charge of the company and responsible to the company for conduct of its business. This has to be averred as a fact as there is no deemed liability of a director in such cases. (c) The answer to question (c) has to be in affirmative. The question notes that the Managing Director or Joint Managing Director would be admittedly in charge of the company and responsible to the company for conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as Managing Director or Joint Managing Director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub-section (2) of Section 141." 12. From the aforesaid decision, it came to be firmly settled that if an offence under Section 138 of the Act of 1881, is committed by a company, then with a view to fasten the liability on its Director or officer, it is necessary to specifically aver in the complaint that at the time the offence was committed, the person accused was incharge of and responsible for conduct of the business of the company and without this averment made in the complaint, the requirements of Section 141 of the Act of 1881, cannot be said to be satisfied. Merely being a Director of a company is not sufficient to make a person responsible for the offence committed by the company. Under Section 141 of the Act of 1881 a Director in a company cannot be deemed to be incharge of and responsible to the company for conduct of its business. The position, however, would be different if the person accused along with the company, is a Managing Director or Joint Managing Director. Such officers of the company would be deemed to be incharge of the company and responsible to it for conduct of its business. Thus, even in the absence of specific averment in the complaint with regard to the role of Managing Director or Joint Managing Director of a company, they would be liable to be proceeded against for the offence committed by the company. Thus, even in the absence of specific averment in the complaint with regard to the role of Managing Director or Joint Managing Director of a company, they would be liable to be proceeded against for the offence committed by the company. Section 34 of the Act is in pari materia with Section 141 of the Act of 1881 and, therefore, what is said by the Supreme Court while answering the reference in SMS Pharmaceuticals case (supra), would apply on all fours to the cases arising under the Act. The issue as to whether the company could have been made liable for prosecution without being impleaded as accused and whether the Directors could have been prosecuted for offences punishable under the provisions of Section 141 of the Act of 1881, without company arraigned as accused, came up for consideration before the three Judge Bench of the Supreme Court in the case of Aneeta Hada v. Godfather Travels and Tours Pvt. Ltd., 2012 (5) SCC 661 . The two criminal appeals; one raising the question with regard to interpretation of Section 138 and 141 of Act of 1881 and one involving interpretation of Section 85 of the Information Technology Act, 2000, came up for consideration before a two Judge Bench and in view of difference of opinion between two learned Judges, constituting the Bench, the matter came to be referred to three Judge Bench. The Hon'ble Supreme Court, after threadbare discussion of the case law on the subject, held in paragraphs 58 and 59, which paragraphs are reproduced hereunder : "58. Applying the doctrine of strict constructions, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words "as well as the company" appearing in the Section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a director is indicted. 59. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a director is indicted. 59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh (supra) which is a three Judge Bench decision. Thus, the view expressed in Sheoratan Agarwal (supra) does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada (supra) is overruled with the qualifier as stated in paragraph 37. The decision in Modi Distilleries (supra) has to be treated to be restricted to its own facts as has been explained by us hereinabove." 13. The same view was reiterated by the Supreme Court in the later case of Sunil Bharti Mittal v. Central Bureau of Investigation, 2015 (4) SCC 609 . While dealing on the principle of alter ego of the company/body corporate, the Supreme Court in the paragraphs 38 to 40 of the aforesaid judgement, held thus : "38. First case which needs to be discussed is Iridium India (supra). Before we discuss the facts of this case, it would be relevant to point out that the question as to whether a company could be prosecuted for an offence which requires mens rea had been earlier referred to in a Constitution Bench of five Judges in the case of Standard Chartered Bank v. Directorate of Enforcement, (2005) 4 SCC 530 . The Constitution Bench had held that a company can be prosecuted and convicted for an offence which requires a minimum sentence of imprisonment. In para 8 of the judgment, the Constitution Bench clarified that the Bench is not expressing any opinion on the question whether a corporation could be attributed with requisite mens rea to prove the guilt. Para 8 reads as under: "8. In para 8 of the judgment, the Constitution Bench clarified that the Bench is not expressing any opinion on the question whether a corporation could be attributed with requisite mens rea to prove the guilt. Para 8 reads as under: "8. It is only in a case requiring mens rea, a question arises whether a corporation could be attributed with requisite mens rea to prove the guilt. But as we are not concerned with this question in these proceedings, we do not express any opinion on that issue"." 39. In Iridium India (supra), the aforesaid question fell directly for consideration, namely, whether a company could be prosecuted for an offence which requires mens rea and discussed this aspect at length, taking note of the law that prevails in America and England on this issue. For our benefit, we will reproduce paras 59, 60, 61, 62, 63 and 64 herein: "59. The courts in England have emphatically rejected the notion that a body corporate could not commit a criminal offence which was an outcome of an act of will needing a particular state of mind. The aforesaid notion has been rejected by adopting the doctrine of attribution and imputation. In other words, the criminal intent of the "alter ego" of the company/body corporate i.e. the person or group of persons that guide the business of the company, would be imputed to the corporation.” 60. It may be appropriate at this stage to notice the observations made by Mac Naghten, J. in Director of Public Prosecutions v. Kent and Sussex Contractors Ltd. 1972 AC 153 : (AC p. 156): "A body corporate is a "person" to whom, amongst the various attributes it may have, there should be imputed the attribute of a mind capable of knowing and forming an intention-indeed it is much too late in the day to suggest the contrary. It can only know or form an intention through its human agents, but circumstances may be such that the knowledge of the agent must be imputed to the body corporate. Counsel for the respondents says that, although a body corporate may be capable of having an intention, it is not capable of having a criminal intention. In this particular case the intention was the intention to deceive. Counsel for the respondents says that, although a body corporate may be capable of having an intention, it is not capable of having a criminal intention. In this particular case the intention was the intention to deceive. If, as in this case, the responsible agent of a body corporate puts forward a document knowing it to be false and intending that it should deceive, I apprehend, according to the authorities that Viscount Caldecote, L.C.J., has cited, his knowledge and intention must be imputed to the body corporate." 61. The principle has been reiterated by Lord Denning in Bolton (H.L.) (Engg.) Co. Ltd. v. T.J. Graham & Sons Ltd. in the following words: (AC p. 172): "A company may in many ways be likened to a human body. They have a brain and a nerve centre which controls what they do. They also have hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company, and control what they do. The state of mind of these managers is the state of mind of the company and is treated by the law as such. So you will find that in cases where the law requires personal fault as a condition of liability in tort, the fault of the manager will be the personal fault of the company. That is made clear in Lord Haldane's speech in Lennard's Carrying Co. Ltd. v. Asiatic Petroleum Co. Ltd. (AC at pp. 713, 714). So also in the criminal law, in cases where the law requires a guilty mind as a condition of a criminal offence, the guilty mind of the directors or the managers will render the company themselves guilty." 62. The aforesaid principle has been firmly established in England since the decision of the House of Lords in Tesco Supermarkets Ltd. v. Nattrass. In stating the principle of corporate liability for criminal offences, Lord Reid made the following statement of law: (AC p. 170 E-G): "I must start by considering the nature of the personality which by a fiction the law attributes to a corporation. In stating the principle of corporate liability for criminal offences, Lord Reid made the following statement of law: (AC p. 170 E-G): "I must start by considering the nature of the personality which by a fiction the law attributes to a corporation. A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these: it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company's servant or agent. In that case any liability of the company can only be a statutory or vicarious liability." 63. From the above it becomes evident that a corporation is virtually in the same position as any individual and may be convicted of common law as well as statutory offences including those requiring mens rea. The criminal liability of a corporation would arise when an offence is committed in relation to the business of the corporation by a person or body of persons in control of its affairs. In such circumstances, it would be necessary to ascertain that the degree and control of the person or body of persons is so intense that a corporation may be said to think and act through the person or the body of persons. The position of law on this issue in Canada is almost the same. Mens rea is attributed to corporations on the principle of "alter ego" of the company. 64. The position of law on this issue in Canada is almost the same. Mens rea is attributed to corporations on the principle of "alter ego" of the company. 64. So far as India is concerned, the legal position has been clearly stated by the Constitution Bench judgment of this Court in Standard Chartered Bank v. Directorate of Enforcement (2005) 4 SCC 530 . On a detailed consideration of the entire body of case laws in this country as well as other jurisdictions, it has been observed as follows: (SCC p. 541, para 6): "6. There is no dispute that a company is liable to be prosecuted and punished for criminal offences. Although there are earlier authorities to the effect that corporations cannot commit a crime, the generally accepted modern rule is that except for such crimes as a corporation is held incapable of committing by reason of the fact that they involve personal malicious intent, a corporation may be subject to indictment or other criminal process, although the criminal act is committed through its agents." 40. It is abundantly clear from the above that the principle which is laid down is to the effect that the criminal intent of the "alter ego" of the company, that is the personal group of persons that guide the business of the company, would be imputed to the company/corporation. The legal proposition that is laid down in the aforesaid judgment is that if the person or group of persons who control the affairs of the company commit an offence with a criminal intent, their criminality can be imputed to the company as well as they are "alter ego" of the company." 14. From the aforesaid analysis of the legal position made by the Supreme Court in the case of Sunil Bharti Mittal case (supra), it is now firmly settled position that corporate entity is an artificial person that acts through its officers, Directors, Managing Director, Chairman, etcetera and if an offence involving mens rea is committed by company, it would be normally attributable to the intent and action of that individual who would act on behalf of the company. It is cardinal principle of Criminal Jurisprudence that there is no vicarious liability unless the statute specifically provides so. It is cardinal principle of Criminal Jurisprudence that there is no vicarious liability unless the statute specifically provides so. An individual, who has perpetrated commission of offence on behalf of a company, can be made accused along with company, if there is sufficient evidence of his active role coupled with criminal intent. It is thus clear that where a company is the offender, vicarious liability of the Directors cannot be imputed automatically in absence of any statutory provision to this effect. Section 34 of the Act, however, provides that in case an offence under the Act has been committed by any company, every person who at the relevant point of time was incharge of and was responsible to the company for the conduct of his business is vicariously liable and can be proceeded against along with the company for the offences committed by the company and punished accordingly. Section 34 of Act of 1940, like Section 141 of Act of 1881, creates this statutory fiction and makes the officers, incharge of affairs of the company, vicariously liable for the offences committed by the company. The earlier view that the company, not having a particular state of mind, cannot be attributed the criminal intent and, therefore, cannot commit any criminal offence was overruled by the Supreme Court in the case of Iridium India Telecom Ltd. v. Motorola Inc., 2011 (1) SCC 74 , in which it was emphatically held that the criminal intent of the alter ego of the company/body corporate, i.e. a person or a group of persons that guide the business of the company would be imputed to the corporation. It was, thus, concluded that if a person or a group of persons, that controls the affairs of the company, commit an offence with criminal intent, their criminality can be attributed to the company as well. These persons incharge of affairs of the company are known as "alter ego" of the company. This is how principle of alter ego was explained by the Supreme Court in the case of Iridium India Telecom Ltd. (supra) and reiterated in the case of Sunil Bharti Mittal (supra). 15. These persons incharge of affairs of the company are known as "alter ego" of the company. This is how principle of alter ego was explained by the Supreme Court in the case of Iridium India Telecom Ltd. (supra) and reiterated in the case of Sunil Bharti Mittal (supra). 15. Although aforesaid judgements have been rendered in the context of the provisions of Section 141 of the Act of 1881, but for the reasons that Section 141 of the Act of 1881, is in pari materia with Section 34 of the Act of 1940, the law laid down in the aforesaid judgements would apply with full force to the cases arising under Section 34 of the Act of 1940 as well. There is another judgement of the Supreme Court rendered in the case of Sharad Kumar Sanghi v. Sangita Rane, 2015 (12) SCC 781 , wherein also the position of law has been restated and it has been held that when the company has not been arraigned as accused the Director or Managing Director cannot be proceeded against. Relying on the judgement of Maksud Saiyed v. State of Gujarat, 2008 (5) SCC 668 , the Supreme Court concluded that in absence of a company being made a party accused, no criminal liability can be fastened upon the Managing Directors and Directors, moreso when there are no specific allegations made against such persons. The subsequent judgement which I have discussed herein above, however, had not specifically taken note of the judgement passed in S.M.S. Pharmaceuticals (supra) on the question insofar as the position of Managing Director or Joint Managing Director is concerned. The three Judge Bench of the Supreme Court in the aforesaid case while answering question no. (c), has clearly held that Managing Director or Joint Managing Director would be admittedly incharge of the company and responsible to the company for conduct of its business and, therefore, can be proceeded against along with the company if the offence has been committed by the company under Section 138 of the Act of 1881, by the aid of Section 141. 16. In view of the foregoing, answer to the questions formulated herein above, would be in the following manner : (a) Answer to question (a) is in the negative. 16. In view of the foregoing, answer to the questions formulated herein above, would be in the following manner : (a) Answer to question (a) is in the negative. Clear import of Section 34 of the Act, which is in pari materia with Section 141 of the Act of 1881, is that if the offence under the Act of 1940 is committed by a company, every person, who, at the time of commission of offence, was incharge of and was responsible to the company for the conduct of its business, shall be vicariously liable. The liability of such officer would, therefore, arise only if the company is liable for the offence. In other words, the allegation in the complaint that the company has committed the offence and is liable to be proceeded against is sino quo non for fastening the vicarious liability on its officers, Managers, Managing Director, Joint Managing Director. It is, thus, clear that unless the company is arraigned as accused and is proceeded against for commission of offence under the Act, the directors, officers and managing director, who may be incharge of and responsible for the affairs of the company, cannot be made accused and proceeded against. In view of the categoric law laid down by the three Judge Bench of the Supreme Court in the case of S.M.S. Pharmaceuticals (supra), it is now firmly settled that Managing Director or Joint Managing Director in a company and Managing Partner/Working Partner in a firm/partnership firm shall be deemed to be incharge of and responsible to the company/firm for the conduct of its business and, therefore, if the company/firm is proceeded against for commission of offence under the Act, the person, who at the time of commission of offence under the Act, was Managing Director or Joint Managing Director could also be arraigned as accused and held vicariously liable for the offence committed by the company. The view aforesaid, taken on analysis of the various judgements of the Supreme Court taken note of herein above, is further fortified by the latest judgement of the Supreme Court rendered in the case of Shiv Kumar Jatia v. State of NCT of Delhi, Criminal Appeal No. 1263 of 2019, decided on 23rd August 2019 : [JKJ Soft JKJ/38922]. The view aforesaid, taken on analysis of the various judgements of the Supreme Court taken note of herein above, is further fortified by the latest judgement of the Supreme Court rendered in the case of Shiv Kumar Jatia v. State of NCT of Delhi, Criminal Appeal No. 1263 of 2019, decided on 23rd August 2019 : [JKJ Soft JKJ/38922]. Applying the law adumbrated herein above to the facts of the petitions on hand, I am of the view that in absence of the Stockist, i.e. M/s Corona Remedies Private Limited, its authorised signatory, who is not even stated to be Director, cannot be proceeded against. Similarly, in absence of the manufacturing unit/partnership concern, i.e. M/s Prosperity 6 Pharmaceuticals, its Managing Director cannot be proceeded against for the offences alleged in the complaint. It may be clarified that in "Explanation" to Section 34 of the Act, the "company" has been defined to mean a body corporate, and includes a firm or other association of individuals and "director” in relation to a firm has been defined to mean a partner in the firm. It is by the aid of "Explanation" appended to Section 34 of the Act, what is applicable to Director and company is also equally applicable to the partner and the firm. (b) The question as to whether in the absence of specific allegations against the accused persons that they are incharge of the affairs of the company and responsible to the conduct of its business, the petitioners cannot be proceeded against, loses its significance in view of the opinion of this Court that petitioners could not have been proceeded against without first impleading the company as party accused in the complaint. Since respondents have not arrayed either M/s Corona Remedies Private Limited, the company of which petitioner in CRMC No. 29/2017, is an authorised signatory and M/s Prosperity 6 Pharmaceuticals, a partnership concern, of which petitioner in CRMC No. 564/2016, is Managing Partner, the complaint against petitioners in both these petitions would be sheer abuse of process of law and would fall within one of the categories enumerated in the case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335. The order of learned CJM, taking cognizance in the complaint is, thus, on the face of it, without application of mind and, therefore, cannot sustain. The order of learned CJM, taking cognizance in the complaint is, thus, on the face of it, without application of mind and, therefore, cannot sustain. The Managing Director/Managing partner including Joint Managing Director would admittedly be person/persons incharge of affairs of the company and can be prosecuted along with company or firm, as the case may be, even in the absence of specific averments in the complaint assigning specific role in the company to those persons. (See: SMS Pharmaceuticals (supra). (c) The third question formulated by me herein above may not require any elaborate discussion in view of my answer to questions (a) and (b) herein above. However, from the perusal of the petitions and the documents placed on record by the petitioners, I have not been able to find out any intimation having been given by the petitioners in terms of Section 25(4) of the Act, notifying their intention of adducing evidence in controversion of the report of the Government Analyst. The communication made by Prosperity 6 Pharmaceuticals through its authorised signatory to the Drug Inspector Zone-I, Jammu-the complainant, cannot be construed to be an intimation of intention to adduce evidence in controversion of the findings of the Government Analyst on the drug in question. No such intimation, however, has been placed on record by the petitioner in CRMC No. 29/2017, an authorised signatory of Corona Remedies Private Limited, to indicate that he or his company ever notified their intention of adducing evidence in controversion of the Government Analyst report. In view of the aforesaid factual position where the petitioners have not been found having made any such intimation to the complainant or the Court concerned, the issue as to whether presentation of complaint after expiry of shell life of drug, has taken away valuable right of petitioners or not, pales into insignificance. That part, there is material on record to believe that shell life of drug had expired at the time of presentation of complaint. 17. In view of foregoing analysis, I am inclined to accept both these petitions and, accordingly, quash the impugned Order of cognizance dated 31st December 2015, passed by the Chief Judicial Magistrate, Jammu and the complaint filed by Drug Inspector Jammu, Zone-1, as allowing such proceedings to continue would be sheer abuse of process of Court. 17. In view of foregoing analysis, I am inclined to accept both these petitions and, accordingly, quash the impugned Order of cognizance dated 31st December 2015, passed by the Chief Judicial Magistrate, Jammu and the complaint filed by Drug Inspector Jammu, Zone-1, as allowing such proceedings to continue would be sheer abuse of process of Court. This, however, would not mean that respondent cannot file fresh complaint after meeting all the requirements of law provided such complaint is not barred by any provision of law.