M/S. The Madras Pharmaceuticals & ... vs The State Of Maharashtra & Ors
2016 Latest Caselaw 2687 Bom

    Mhi                                   1        WP-1051-2001.sxw


                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            CRIMINAL APPELLATE JURISDICTION




                                                                                
                     CRIMINAL WRIT PETITION NO. 1051 OF 2001




                                                       
          1.     M/s. The Madras Pharmaceuticals             )
                 having its address at                       )




                                                      
                 137B, Old Mahabalipuram Road,               )
                 Karapakkam, Chennai 600 096                 )

          2.     Mr.A.Mohamed Sulaiman,                      )
                 Aged around 49 years,                       )




                                             
                 Partner of -                                )
                 M/s. The Madras Pharmaceuticals
                                     ig                      )
          3.     Dr. S.Manohar                               )
                 Aged around 48 years,                       )
                                   
                 Partner of -                                )
                 M/s. The Madras Pharmaceuticals             )

          4.     Smt. N.Meenakshy                            )
                 Aged around 36 years,                       )
            


                 Partner of -                                )
                 M/s. The Madras Pharmaceuticals             )
         



          5.     Smt. B.Mangaleshwari                        )
                 Aged around 36 years                        )
                 Partner of -                                )





          6.     Smt. A.L.Gandhimathy                        )
                 Aged around 39 years,                       )
                 Partner of -                                )
                 M/s. The Madras Pharmaceuticals             )
                 All having their address at                 )





                 137B, Old Mahabalipuram Road,               )
                 Karapakkam, Chennai 600 096.                )..Petitioners.

                       vs.
          1.     The State of Maharashtra                    )
          2.     Shri R.E.Bhilare,                           )
                 Drug Inspector (Brihanmumbai)               )




           ::: Uploaded on - 22/06/2016                 ::: Downloaded on - 30/07/2016 04:45:43 :::
     Mhi                                   2             WP-1051-2001.sxw

                 Office of the Jt. Commissioner                   )
                 Brihanmumbai, Foods and Drugs                    )
                 Administration Maharashtra State,                )




                                                                                     
                 Bandra Kurla Complex, Opposite                   )
                 Reserve Bank of India, Bandra (East),            )




                                                             
                 Mumbai 400 051.                                  ).. Respondents


          Mr.Hrishikesh Chavan h/f. Mr. Subodh Desai,Advocate for the petitioners.




                                                            
          Ms. A.A.Mane, APP, for the State.

                                          CORAM: SMT. SADHANA S.JADHAV, J.

DATE : 9th June, 2016.

ORAL JUDGMENT:

Heard the learned counsel for the petitioner and the learned

APP.

2. The petitioners herein are seeking the relief of quashing of the

order of issuance of process against the petitioners in RCC No.4/S/2001 by

the Metropolitan Magistrate, 6th Court, Mazgaon, Mumbai under the

provisions of the Drugs & Cosmetics Act, 1940.

3. At the threshold, it is apparent on the face of the record that the

petitioners herein are placing implicit reliance upon the notice issued to

them by the Drug Inspector,Brihan Mumbai, dated 20.6.2001, by which the

petitioners were informed that a prosecution has been filed against them for

sub-standard quality of a drug Tab. E-PRIL-2.5 However, it is mentioned

Mhi 3 WP-1051-2001.sxw

in the body of the petition that the petitioners had not received any

summons from the concerned Court till the date of filing of the petition.

However, on enquiry, it was learnt that the process was issued against them

and the matter was scheduled on 3.8.2001 as per the notice dated 20.6.2001

issued by the Drug Inspector and hence the petitioners have approached this

Court seeking the relief of quashing of the order of issuance of process

against them.

4.

That the Drug Inspector, Brihan Mumbai of the Food & Drugs

Administration, State of Maharashtra filed a complaint in the Court of

Metropolitan Magistrate, 6th Court, Mazgaon, Mumbai on 8.2.2001 alleging

therein that on 29.12.1999, the complainant had visited the premises of M/s.

C.P.Enterprises, Girirath Shop No.6, 3rd Carter Road, Brivali (East) and had

taken the drug samples of the abovementioned drug for the purpose of

testing and analysis as contemplated under Section 22 of the said Act. It

was revealed from the label of the said drug that the said drug has been

manufactured by Mano Pharmaceuticals. The complainant had seen the

samples on th spot and has sent them to the Government Analyst, Mumbai

for test and analysis after following the procedure under Section 23 of the

said Act. The report was received on 29.7.2000 and it was reported that

Mhi 4 WP-1051-2001.sxw

the said drug does not comply with the standard quality and is a sub-

standard product. Thereafter on 2.8.2000, the complainant had revisited the

premises of M/s. C.P.Enterprise, and had inspected the firm. Upon enquiry

with the firm, it was revealed that the firm had received tablets of drug in

question from M/s. Diamond Pharma Agency. The bills of the said drug

were seized. Thereafter, the complainant had followed due procedure of

law. By a letter dated 24.8.1999, a copy of the Analytical Report was sent

by the complainant to M/s. Mano Pharmaceuticals, Chennai, for

information as their name was disclosed as manufacturer of the said drug on

the label affixed to the carton of the said drug. The Joint Commissioner had

directed the Drug Inspector to initiate prosecution and accordingly a

complaint was filed. In the course of enquiry by the complainant, it was

learnt that Mano Pharmaceuticals had produced the said drug under the

loan licence to manufacture and that they were manufacturing the said

product from M/s. Madras Pharmaceuticals i.e. petitioner No.1. The drug

was sold to M/s. Yel Pharma Chennai by Mano Pharmaceuticals.

5. It is further stated in the complaint specifically that on

22.1.2001, the complainant had visited the premises of the petitioner

company. It was revealed that in the course of enquiry that the said firm

Mhi 5 WP-1051-2001.sxw

was having a valid drug manufacturing licence which was granted to them

by the Director of Drugs Control Tamil Nadu, Chennai. That they have

various loan licence manufacturers and that Mano Pharmaceuticals is one of

them. It was also revealed that the sheet showing the manufacturing list

bears the signature of Mr. M.Y.Ahmed, who at the relevant time, was the

Production Manager of the petitioner company. It is also revealed that the

said product was analysed in their own laboratory and was certified to be

that of the standard quality. Both the reports bear the signature of Dr.

K.S.Ganesh who happens to be the approved competent technical staff in

charge of maintenance quality. In view of this, the complainant had

prayed to the Hon'ble Court that the accused No. 1 to 10 deserve to be

prosecuted under the Drugs & Cosmetics Act for manufacturing for sale of

Drug E-PRIL of a sub-standard quality prior to 29.7.2001.

6. It is pertinent to note that the present petitioners are the

partners of petitioner No.1. That the original accused Nos.1, 2, 8 and 9 are

not before this Court.

7. The learned counsel for the petitioners submits that the

complaint does not attribute any specific averments/allegations against the

Mhi 6 WP-1051-2001.sxw

present petitioners. According to the learned counsel for the petitioners,

upon perusal of the r complaint, it is clear that the present petitioner is not

a manufacturer of the said disputed drug. That the original accused Nos. 8

and 9 were employed by the present petitioner No.1 as their technical staff

and the said drug was analyzed at the laboratory of the petitioner No.1 and

a certificate was specifically issued by original accused Nos. 8 and 9 who

are not before the Court.

8.

Section 34 of Drugs & Cosmetics Act, 1940 contemplates as

follows :-

"34. Offenes 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 conduit 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 ini 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

Mhi 7 WP-1051-2001.sxw

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."

According to the learned counsel for the petitioners, it cannot be said that

the Managing Director of the petitioner No.1 or the partners of the

company were a party to the certificate which was issued by the original

accused Nos. 8 and 9 and, therefore, it cannot be said 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 and therefore, the order of issuance of process against the present

petitioners would be an abuse of process of law.

9. In the case of Umesh Sharma and another vs. S.G. Bhakta

and others 2002 Cri. L.J. 4843, it is observed as follows :-

"On reference to s. 34 as a whole, there is a presumption of being guilty against the person, who is in-

charge of and responsible to the company and such a person is liable to be punished unless he proves that offence was committed without his knowledge or in spite of exercise of due diligence to prevent the commission of offence. By virtue of sub-section (2) which is given overriding effect over sub-section (1) by non obstante clause in its opening part, the prosecution is obliged to prove that the offence has

Mhi 8 WP-1051-2001.sxw

been committed with the consent or connivance of or is attributable to any neglect on the part of the Director, manager, Secretary or other officer of the company, before

drawing a presumption of guilty against such individual. Taking into consideration the overriding effect given to sub-

section (2) it will be responsibility of the prosecution to first indicate and prove that objectionable drug was manufactured with the consent or in connivance of the Managing Director or production of the said drug as

attributable to any neglect on the part of the Managing Director, only thereafter he would be presumed to be the person in charge of and is resposi9ble to the company for conduct of business and will be obliged to establish absence of knowledge or exercise of the diligence in order to seek

exoneration. In the absence of specific averments that he was in-charge of and responsible to the conduct of the

company, so far as it related to manufacture of the drug, he would not be liable for prosecution along with company.

Thus, where there were no averments in the complaint attracting ingredients required by S.34(i) and, therefore, mere description of accused as Managing Director and Director will not be sufficient to sustain the process issued against him."

10. Upon perusal of the complaint itself, it is clear that the

drug was seized from the shop of M/s. C.P.Enterprises Girirath. The

label on the said drug clearly revealed that the manufacturer of the

sub-standard disputed drug was from Mano Pharmaceuticals and

therefore the complainant had rightly issued the notice to Mano

Pharmaceuticals and no notice was issued to the present petitioners.

It is also a matter of record that the analysis report which was

received by the complainant was also sent to Mano Pharmaceuticals

Mhi 9 WP-1051-2001.sxw

as the complainant was also of the opinion that it is the manufacturer

who would be held liable for the same. The contention of the

petitioner that the petitioners had no knowledge about the seizure of

the disputed drug and sending of the said drug for the purpose of

analysis cannot be considered for the simple reason that the

complainant had visited the office of the petitioner No.1 and had

conducted the enquiry. It is true that the company has specifically

stated that when the matter was being enquired with the firm of the

petitioner No.1, he had conducted the enquiry through original

accused Nos. 8 and 9 and therefore the contention that other directors

and the partners had no knowledge about the said seizure and

enquiry can be taken into consideration. The petitioner-company

was not given a fair opportunity to send the said drug for re-analysis

as the date of export of the said drug was March 2001 and the

complainant had enquired with the original accused Nos. 8 and 9 in

January 2001. The learned counsel further submits that in absence of

the specific averments or allegations attributing the responsibility of

the said sub-standard drug to the petitioners, the prosecution

initiated against them would be an abuse of process of law and hence

prays that the order of issuance of process be quashed.

Mhi 10 WP-1051-2001.sxw

11. The learned APP submits that the drug was manufactured by

Mano Pharmaceuticals under the loan licence of the present petitioner No.1

and therefore, they are liable to be prosecuted. The allegation in the

complaint is not that a spurious drug was manufactured on the basis of the

licence issued by the present petitioner No.1 but that the drug was of a sub-

standard quality. It is in these circumstances that this Court is of the

opinion that continuance of the prosecution against the present petitioners

would be an abuse of process of law and hence this Court is inclined to

quash the order of issuance of process initiated against the present

petitioners.

12. Hence, the petition deserves to be allowed. Rule is made

absolute in the above terms. Petition stands disposed of.

(SMT.SADHANA S.JADHAV, J.)