ORDER : 1. All these criminal miscellaneous petitions arise out of one and the same proceedings and therefore, they were heard together and are decided by this common order. 2. Petitioners have filed aforementioned petitions invoking jurisdiction of this Court under Section 482 of Criminal Procedure Code, 1973 for quashment of proceedings of Criminal Case No. 256 of 2013, pending before learned Judicial Magistrate First Class, Ambikapur and also seeking for setting aside the order dated 18.10.2017 of issuance of warrant of arrest against petitioners. 3. Brief facts relevant for disposal of these petitions are that on 26.10.1995, Drug Inspector, Ambikapur, District – Sarguja inspected the premises of Jindal Medical Agency at Ambikapur and have taken samples of three medicines for examination. Out of three medicines, 200 numbers of Betnesol tablets having batch No. NB 656, manufacturing date September, 1995, expiry date February 1997, manufactured by M/s. Glaxo India Limited, Nasik was taken for examination. The samples taken from medical agency was sent to the Government Analyst and according to the report sent by Government Analyst, medicine Betnesol tablets having batch No. NB 656 was found to be not of standard quality. After further enquiring into the matter, complaint case was filed before the Court of Judicial Magistrate First Class, Ambikapur bearing Criminal Case No. 256 of 2013 for commission of offence under Section 18 (a) (i) read with Section 27 (d) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as ‘the Act of 1940’). The arrest warrant were also issued against petitioners and petitioners thereafter approached this Court by filing these petitions seeking relief as mentioned above. 4. Learned Senior counsel appearing on behalf of petitioners would submit that petitioners are non-executive directors of respondent No.17/company. Petitioners are not directly involved in the management and affairs of the company. They are not having any active role to play in functioning of the company and not responsible to conduct business. In the complaint filed by Drug Inspector there is no specific mention that petitioners were incharge and was responsible for conducting business of company when alleged offence said to be committed. They are not having any active role to play in functioning of the company and not responsible to conduct business. In the complaint filed by Drug Inspector there is no specific mention that petitioners were incharge and was responsible for conducting business of company when alleged offence said to be committed. Unless and until there is specific pleading in the complaint showing the role of petitioners that they were in charge, responsible to the company for the conduct of business, petitioners can not be prosecuted as they can not be held vicariously liable for the alleged commission of offence, if any, under the Act of 1940. In support of his contention he placed reliance upon the decision of Hon’ble Supreme Court in case of State of Haryana Vs. Brij Lal Mittal And Others, reported in (1998) 5 SCC 343 , S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and Another, reported in (2005) 8 SCC 89 , in S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and Another, reported in (2007) 4 SCC 70 and in case of Lalankumar Singh & Others Vs. State of Mahrashtra, reported in 2022 SCC OnLine SC 1383. He also contended that during the same period complaint cases were also filed against petitioners within the territorial jurisdiction of State of Madhya Pradesh stating that Betnesol tablet purchased from medical shop and sent to analyst at Bhopal was found not of standard quality and the registration of complaint against petitioners was put to challenge, which came to be allowed in M.Cr.C. No. 3526 of 2005, M.Cr.C. No. 4550 of 2005 and M.Cr.C. No. 8336 of 2006. The case of petitioners herein is under identical facts of the case as registered by the Court of competent jurisdiction within the State of Madhya Pradesh. Lastly he contended that during pendency of this petition, Criminal Case No. 256 of 2013 came to be decided with respect to the proposed accused No.1 and 17 and the learned Magistrate acquitted the accused No.1 and 17 from the charges holding that prosecution failed to prove the charges beyond reasonable doubt. The accused No.17 is a company of whom the petitioners are non-executive directors. 5. Learned State counsel opposes the submission of learned counsel for petitioners and would submit that petitioners are directors of respondent No.17-company. The accused No.17 is a company of whom the petitioners are non-executive directors. 5. Learned State counsel opposes the submission of learned counsel for petitioners and would submit that petitioners are directors of respondent No.17-company. Tablet Betnesol sent for examination to Government Analyst were found to be not of standard quality and therefore, the criminal case was registered against petitioners along with others. As petitioners are directors, therefore, petitioners have been rightly arrayed as an accused in the complaint filed under Section 18 (a) (i) of the Act of 1940. 6. I have heard learned counsel for parties and perused the documents placed on record. 7. The pleading made in the petitions and the submission of learned counsel for petitioners are that petitioners are non-executive directors of respondent No.17-company is not dispute by respondent-State. The contention of learned counsel for petitioners is that petitioners being non-executive directors they can not be prosecuted unless and until there is specific pleading that petitioners were in charge and responsible to the company for conducting business of the company. To appreciate the submission of leaned counsel for petitioner I find it appropriate to extract the relevant provision Section 34 of the Act of 1940, which are as under :- “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 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. 8. It is also not in dispute that respondent No.17 is a company registered under the Companies Act and petitioners are non-executive directors. Section 34 of the Act of 1940 envisages that if offence has been committed by a company every person, who 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. Copy complaint filed under Section 18 (a) (i) read with Section 27 (d) of the Act of 1940 is placed on record as Annexure P-1. In the complaint application there is no specific averment in the pleadings that petitioners were in charge and were also responsible to the company for the conduct of business which is a mandatory requirement under Section 34 of the Act of 1940. 9. The allegation as per requirements under the law particularly Section 34 of the Act of 1940 ought to have been specifically levelled and mentioned in the complaint. Even if the petitioners happens to be the directors of company, this fact in itself is not sufficient for their prosecution in view of the language used under Section 34 of the Act of 1940. 10. The Hon’ble Supreme Court in case of State of Haryana Vs. Brijlal Mittal (supra) considering the provisions under Section 34 of the Act of 1940 has observed thus :- “8. Nonetheless, we find that the impugned judgment of the High Court has got to be upheld for an altogether different reason. 10. The Hon’ble Supreme Court in case of State of Haryana Vs. Brijlal Mittal (supra) considering the provisions under Section 34 of the Act of 1940 has observed thus :- “8. Nonetheless, we find that the impugned judgment of the High Court has got to be upheld for an altogether different reason. Admittedly, the three respondents were being prosecuted as directors of the manufacturers with the aid of Section 34(1) of the act which reads as under: “34. Offence 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 its knowledge or that he exercised all due diligence to prevent the commission of such offence." It is thus seen that the vicarious liability of a person for being prosecuted for an offence committed under the Act by a company arises if at the material time he was in-charge of and was also responsible to the company for the conduct of its business. Simply because a person is a director of the company it does not necessarily mean that he fulfills both the above requirements so as to make him liable. Conversely, without being a director a person can be in-charge of and responsible to the company for the conduct of its business. From the complaint in question we, however, find that except a bald statement that the respondents were directors of the manufacturers, there is no other allegation to indicate, even prima facie, that they were in-charge of the company and also responsible to the company for the conduct of its business.” 11. Hon’ble Supreme Court in S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla & Another, reported in (2005) 8 SCC 89 dealing with issuance of process under Section 204 and 203 of Code of Criminal Procedure in complaint case filed under Negotiable Instrument Act, 1881, considering Section 141 of the Negotiable Instrument act, 1881 has observed thus :- "19. Hon’ble Supreme Court in S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla & Another, reported in (2005) 8 SCC 89 dealing with issuance of process under Section 204 and 203 of Code of Criminal Procedure in complaint case filed under Negotiable Instrument Act, 1881, considering Section 141 of the Negotiable Instrument act, 1881 has observed thus :- "19. 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 the question posed in sub-para (b) has to be in the 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 the 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) x x x x x x x 12. The aforementioned decision of Hon’ble Supreme Court was an answer to the reference made by Larger Bench and after receiving back the cases Hon’ble Supreme Court in judgment of S.M.S. Pharmaceuticals, reported in (2007) 4 SCC 70 has observed in para 23, 24 and 30 which reads as under :- “23. On a plain reading of the averments made in the complaint petition, we are satisfied that the statutory requirements as contemplated under Section 141 of the Act were not satisfied. 24. This aspect of the matter has recently been considered by this Court in Sabitha Ramamurthy & Anr. v. R.B.S. Channabasavaradhya {(2006) (10) SCC 581)}, wherein it was held: “7. On a plain reading of the averments made in the complaint petition, we are satisfied that the statutory requirements as contemplated under Section 141 of the Act were not satisfied. 24. This aspect of the matter has recently been considered by this Court in Sabitha Ramamurthy & Anr. v. R.B.S. Channabasavaradhya {(2006) (10) SCC 581)}, wherein it was held: “7. A bare perusal of the complaint petitions demonstrates that the statutory requirements contained in Section 141 of the Negotiable Instruments Act had not been complied with. It may be true that it is not necessary for the complainant to specifically reproduce the wordings of the section but what is required is a clear statement of fact so as to enable the court to arrive at a prima facie opinion that the accused are vicariously liable. Section 141 raises a legal fiction. By reason of the said provision, a person although is not personally liable for commission of such an offence would be vicariously liable therefor. Such vicarious liability can be inferred so far as a company registered or incorporated under the Companies Act, 1956 is concerned only if the requisite statements, which are required to be averred in the complaint petition, are made so as to make the accused therein vicariously liable for the offence committed by the company. Before a person can be made vicariously liable, strict compliance of the statutory requirements would be insisted." 30. It is, therefore, an authority for the proposition that the High Court is not completely denuded of its power to exercise inherent jurisdiction for the second time. 13. In case of Lalankumar Singh (supra), Hon’ble Supreme Court considering the decision in case of S.M.S. Pharmaceuticals Limited (2005) 8 SCC 89 (supra) and taking note of other decision on the issue has observed thus :- “28. It could thus clearly be seen that this Court has held that merely reproducing the words of the section without a clear statement of fact as to how and in what manner a director of the company was responsible for the conduct of the business of the company, would not ipso facto make the director vicariously liable. 33. It can thus be seen that there are no specific averments insofar as the present appellants are concerned. 33. It can thus be seen that there are no specific averments insofar as the present appellants are concerned. It is further to be noted that the present appellants are neither the managing director nor the whole time directors of the accused company. 38. The order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. The order is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused. No doubt, that the order need not contain detailed reasons. A reference in this respect could be made to the judgment of this Court in the case of Sunil Bharti Mittal vs. Central Bureau of Investigation (2015) 4 SCC 609 , which reads thus: “51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e. the complaint, examination of the complainant and his witnesses, if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused. 52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction. 53. However, the words “sufficient ground for proceeding” appearing in Section 204 are of immense importance. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction. 53. However, the words “sufficient ground for proceeding” appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect.” 14. Another angle to be looked into in the case at hand is that during the pendency of these petitions, Criminal Case No. 256 of 2013 in which the petitioners were also implicated as an accused along with others came to be decided vide judgment dated 19.02.2022 in which it is mentioned that the case against petitioners are stayed. Learned Magistrate acquitted the accused/non-applicant No.1 and 17 holding that prosecution failed to prove the offence against them beyond reasonable doubt, non-applicant No.17 is a company of which the petitioners are non-executive directors. 15. In the aforementioned facts of the case and the decision of Hon’ble Supreme court, there is no specific averments, pleading, allegations against petitioners as required under Section 34 of the Act of 1940. 16. Accordingly all the petitions are allowed and the prosecution so far as it relates to petitioners in criminal case No. 256 of 2013, pending before the Judicial Magistrate First Class, Ambikapur is hereby quashed.