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2022 DIGILAW 53 (JHR)

Anand Sen v. State of Jharkhand

2022-01-06

SANJAY KUMAR DWIVEDI

body2022
JUDGMENT : SANJAY KUMAR DWIVEDI, J. 1. Heard Mr. Amit Kumar Das, learned counsel appearing for the petitioners and Mr. Prabhu Dayal Agrawal, learned Spl. P.P. for the State. 2. This petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard. 3. This criminal miscellaneous petition has been filed for quashing of the entire criminal proceedings in connection with C/2 Case No. 43 of 2014 including the order dated 15.03.2014 passed by the learned Chief Judicial Magistrate, Jamshedpur, whereby cognizance under Section 18(C) of the Drugs and Cosmetics Act, 1940 has been taken against the petitioners, pending in the Court of learned Judicial Magistrate, 1st Cass, Jamshedpur. 4. The complaint case was filed stating therein that the O.P. No. 2 on 03.09.2012 had visited the Drug Distribution Centre of Tata Bluescope Steel Limited and during inspection, found the following medicines in store: (i) Decdan Inj. B. No. 10L007 (ii) Voveran Inj. B. No. 12102 (iii) Zinetac Inj. B. No. NB121 (iv) Buscopan Inj. B. No. GL3032, Avil Inj. B. No. 2311260 These medicines are distributed among ill workmen as alleged. On demand, the Institution could not produce any licence nor could they produce the voucher of purchased medicines. During inspection, the copy of Inspection Letter No. Camp. JSR dated 03.09.2012 was made available. Again vide Letter No. 563 dated 11.09.2012 TATA Bluescope Steel Limited was directed to reply to show cause as to why action should not be taken against the accused petitioners for selling the drug without licence. Vide Letter No. TBSL/HR/309/2012 dated 26.09.2012, issued by Tata Bluescope Steel Limited it was informed that only for the purpose of First Aid, some basic medicines are being stored by the institution. Vide Letter No. 778 dated 18.05.2013 to M/s Arogya Medicals, it is alleged that they had supplied the medicines to M/s Tata Bluescope Steel Limited who do not have any valid license and which is in violation of the provisions of the Rule 65(3)(1)(d) and thus, it is alleged that the accused persons have committed an offence under Section 18(c) of the Drugs and Cosmetics Act. 5. Mr. 5. Mr. Amit Kumar Das, learned counsel appearing for the petitioners submits that by order dated 15.03.2014 without application of mind, cognizance has been taken against the petitioners. He submits that the petitioner Nos. 3, 6 and 7 are stationed at Australia, petitioner No. 4 is stationed at Coimbator, petitioner No. 5 is stationed at Singapore and petitioner No. 8 is stationed at Bhopal and all the petitioners have been implicated in this case. He further submits that the company has not been made party and the petitioners are the Senior Directors and Senior Executives of the company and they have been made accused by name. He also submits that in view of Section 34 of the Drugs and Cosmetics Act, the prosecution of the petitioners in absence of the company is not maintainable. He further submits that such prosecution is nothing but an abuse of the process of the Court and the same is liable to be quashed. 6. Mr. Prabhu Dayal Agrawal, learned Spl. P.P. appearing for the State submits that there is no illegality in the cognizance order and the same has rightly been taken against the petitioners. 7. In view of the above facts and considering the submission of learned counsel appearing for the parties, this Court has gone through the relevant Sections of the of the Drugs and Cosmetics Act and the materials available on record. For ready reference Section 34 of the of the Drugs and Cosmetics Act is quoted herein-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 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. (b) “director” in relation to a firm means a partner in the firm.” 8. In view of Section 34 of the of the Drugs and Cosmetics Act, it is evident that vicarious liability in criminal jurisprudence had been considered and it has been held that Directors cannot be ipso facto deemed to be In charge and responsible to the company for the conduct of the business. 9. Reference may be made in the case of State of Haryana vs. Brijlal Mittal and Others, (1998) 5 SCC 343 , wherein in Para-9, the Hon’ble Supreme Court held as follows: “9. In Delhi Municipality vs. Ram Kishan, (1983) 1 SCC 1 , while dealing with the applicability of Section 17(1) of the Prevention of the Food Adulteration Act, 1954, which is in pari materia with Section 34(1) of the Act, on similar facts, this Court observed as under: “So far as the Manager is concerned, we are satisfied that from the very nature of his duties it can be safely inferred that he would undoubtedly be vicariously liable for the offence, Various liability being and incident of an offence under the Act. So far as the Directors are concerned, there is not even a whisper not a shred of evidence nor anything to show, apart from the presumption drawn by the complainant, that there is any act committed by the Directors from which a reasonable inference can be drawn that they could also be vicariously liable. In these circumstances, therefore, we find ourselves in complete agreement with the argument of the High Court that no case against the Directors (accused Nos. In these circumstances, therefore, we find ourselves in complete agreement with the argument of the High Court that no case against the Directors (accused Nos. 4 to 7) has been made out ex facie on the allegations made in the complaint and the proceedings against them were rightly quashed.” (Emphasis supplied) 10. This Court has perused the cognizance order dated 15.03.2014, which is also not in accordance with law. The concerned Court has to take into consideration as to what are the materials available against the petitioners for taking cognizance, which is not recorded in the order of taking cognizance dated 15.03.2014. 11. In view of these two pointes, this criminal miscellaneous petition succeeds. As such the entire criminal proceedings in connection with C/2 Case No. 43 of 2014 including the order dated 15.03.2014 passed by the learned Chief Judicial Magistrate, Jamshedpur, whereby cognizance under Section 18(C) of the Drugs and Cosmetics Act, 1940 has been taken against the petitioners, pending in the Court of learned Judicial Magistrate, 1st Cass, Jamshedpur, are hereby, quashed and set aside. 12. This criminal miscellaneous petition is allowed and disposed of.