D R Salgaocar vs State Of Maha
2016 Latest Caselaw 5625 Bom

                                      1     CRI APPLN NO.1904.2003.odt

          IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD




                                                                        
                 CRIMINAL APPLICATION NO. 1904 OF 2003




                                                
                 D.R. Salgaoncar, age 56 yrs,
                 Occ. Managing Director of 




                                               
                 Geno Pharmaceuticals Ltd.,
                 R/o "Shravani", Near Sports Complex,
                 Pedem, Mapusa Goa.               ... Applicant...

                 VERSUS




                                    
         1.      The State of Maharashtra
                             
         2.      Shri P.N.Katkade, Drug Inspector,
                 Nanded, Office of the Asstt. Commissioner,
                            
                 Food and Drugs Administration,
                 M.S. Nanded 431602.               ...Respondents...
                                       ...
                    Advocate for Applicant : Mr S G Ladda
      


                  APP for Respondent State : Mr P G Borade
                                       ...
   



                          CORAM : V.K. JADHAV, J.

Dated: September 28, 2016 ...

ORAL JUDGMENT :-

1. Being aggrieved by the judgment and order dated

12.8.2003 passed by the Additional Sessions Judge,

Nanded in Criminal Revision Application No.23/2000,

the original accused no.5 preferred this criminal

application.

2 CRI APPLN NO.1904.2003.odt

2. Brief facts, giving rise to the present Criminal

Application are as follows :-

On 19.12.1994 the drug inspector alleged to have

drawn sample of "Cypon Paediatric 30 ml"

manufactured by the original accused no.13 i.e. M/s.

Geno Pharmaceuticals Ltd., for the purpose of test and

analysis by completing all the formalities. Thereafter,

the Drug Inspector sent the sample to the Government

Analyst Bombay for the purpose of test and analysis and

report dated 1.7.1995 of the analysis was received by

him on 6.7.1995. As per said report, the drug was not of

standard quality as the contents of L-Lysine Mono

hydrochloride in the sample was less than the labeled

amount (65.88%). Drug Inspector after completing all

the formalities including sending copy of the said report

to the original accused no.13 i.e. Geno Pharmaceutical

Ltd., Mapusa, Goa, a Company registered under the

Companies Act filed a complaint in the Court of Chief

Judicial Magistrate on 14.4.1996. So far as accused

nos. 4 to 12 are concerned, they are the members of the

Board of Director of the Company. Subsequently,

accused Nos. 4 to 13 moved an application Exh.28 on

3 CRI APPLN NO.1904.2003.odt

2.10.1999 for recalling of order of process and after

hearing the parties, the learned Chief Judicial

Magistrate by order dated 30.12.1999 passed order

below Exh.1 and called back the process issued against

accused nos. 4 to 12 and discharged them accordingly.

However, the learned Chief Judicial Magistrate directed

to proceed against original accused nos. 1 to 3 and 13

i.e. manufacturer Geno Pharmaceuticals Limited. Being

aggrieved by the same, the State has preferred Criminal

Revision Application No.23/2000 before the Sessions

Court, Nanded. The learned Additional Sessions Judge,

Nanded by its impugned judgment and order dated

12.8.2003 confirmed the order passed by the Magistrate

except the order passed against present

applicant/original accused no.5. Hence, this criminal

application to that extent of the order passed against

applicant-original accused.

3. The learned counsel for the applicant submits

that, in the nomenclature of the complaint, it is only

mentioned that, the present applicant is a Managing

Director of M/s Geno Pharmaceuticals Limited. There

4 CRI APPLN NO.1904.2003.odt

are no averments in the complaint that, the present

applicant-original accused no.5 is in-charge and

responsible to the company for the conduct of the

business of the company. The learned counsel submits

that, merely because present applicant-original accused

no.5 is described as Managing Director that by itself is

not sufficient to draw a presumption that he is in-charge

of or responsible to the conduct of the business of the

company. The applicant-original accused no.5 may have

a control over the matter such as policy decision,

however, in absence of any averment in the complaint, it

cannot be said that the applicant-original accused no.5

is also in-charge of the production or manufacture of

the objectionable drugs.

4. The learned counsel in order to substantiate his

submissions places his reliance on a judgment in case

of Umesh Sharma and another Vs. S.G. Bhakta and

others reported in 2003 Bom.C.R.(Cri.) 1522,

wherein, this Court had an occasion to deal with the

similar question and this Court by referring the

judgment of the Apex Court in a case of Municipal

5 CRI APPLN NO.1904.2003.odt

Corporation of Delhi Vs. Ram Kishan Rohtagi and

Others reported in (1983) 1 Supreme Court Cases 1

and State of Haryana Vs. Brij Lal Mittal and Others

reported in AIR 1998 SC 2327, held that process

issued against the petitioners therein required to be

recalled with the further observations that, merely

because process is recalled against the said petitioner

will not prevent the trial court from exercising discretion

if it is fully satisfied that case for taking cognizance

against them has been made out on the additional

evidence that may be lead before it by taking recourse to

it by section 319 of the Code of Criminal Procedure.

5. Learned counsel for the applicant further places

his reliance on the following three cases to substantiate

his submissions :-

I] Narendrakukar Mangilal Dani and Others Vs.

State of Maharashtra and Another reported in 2001(4) Mh.L.J. 341.

ii] Venkaiah Chowdary Nannapaneni and Others Vs. State of Maharashtra reproted in 2003 ALL MR (Cri)

758.

iii] U.P. Pollution Control Board Vs. Mohan Meakins Limited and Others reported in (2000) 3 SCC 745.

6 CRI APPLN NO.1904.2003.odt

6. The learned APP submits that, the present

applicant is Managing Director of the company and as

such he is a person in-charge of the conduct of the

business of company. The learned APP submits that

Managing director is supposed to look after the entire

business of the company right from manufacturing of

the drugs product up to sale. Furthermore, the present

applicant has no where stated in his application for

recalling of the order of issue process that he is not

responsible for the conduct and business of the

company. Thus, the impugned order passed by the

Additional Sessions Judge, Nanded dated 12.8.2003 in

the said criminal revision application calls for no

interference. There is no substance in the criminal

application and criminal application is thus liable to be

dismissed.

7. On careful perusal of the complaint, it appears

that, in the nomenclature of the complaint, it is

mentioned that present applicant-original accused no.5

is the Managing Director of accused no.13 M/s Geno

Pharmaceuticals Limited. It has also mentioned in

7 CRI APPLN NO.1904.2003.odt

paragraph no.5 of the complaint that accused no.5 is

the Managing Director of accused no.13 company.

Except this, there are no further averments in the

complaint that original applicant accused no.5 is in

charge and responsible to the company for the conduct

and business of the company.

8. In a case of Umesh Sharma and Another Vs. S.G.

Bhakta and Others (supra) relied upon by the learned

counsel for the applicant, this Court had an occasion to

deal with similar question and accordingly, this Court

has considered the definition of 'Managing Director' as

provided under section 2 (26) of the Companies Act,

1956. This Court has also referred the definition of

'Manager' as provided under section 2 (24) of the

Companies Act, 1956. By referring those two definitions

this Court has observed that Manager by virtue of his

office has the management of whole or substantially

whole of the affairs of the company, and the Managing

Director has to be entrusted with such powers of the

management and powers of management are required to

be delegated upon Managing Director either, by an

8 CRI APPLN NO.1904.2003.odt

agreement with the company or by resolution passed by

the Board of Directors in its general meeting or by virtue

of its memorandum or article of association. It is not the

name by which the person is called but the position he

occupies and the functions and duties which he

discharges that determines whether infact, he is in-

charge of and responsible to the company or not as

defined in Section 2 (26) of the Companies Act. Even

this Court has distinguished the case in U.P. Pollution

Control Board Vs. Mohan Meakins Limited and Others

(supra). In the said case there are specific allegations in

the complaint by which the Manager or Director of the

company can also proceeded against when the company

is alleged to be guilty of the offence. Thus, by referring

the two cases of the Supreme Court i.e. Municipal

Corporation of Delhi Vs. Ram Kishan Rohatagi (supra)

and State of Haryana Vs. Brij Lal Mittal and Others

(supra) this Court held that in absence of any averment

in the complaint, that the accused who is named in the

complaint as Managing Director is responsible and in

charge of the entire affairs of company, the process

9 CRI APPLN NO.1904.2003.odt

issued against such an accused is required to be

recalled. A similar view is taken by this Court in a case

Narendrakumar Mangilal Dani and Others Vs. State of

Maharashtra and Another and Venkaiah Chowdary

Nannapaneni and Others Vs. State of Maharashtra

(supra).

9. In the light of the above discussion and the ratio

laid down by the Supreme Court in the said two

judgments i.e. Muncipal Corporation of Delhi Vs. Ram

Kishan Rohtagi and Others and State of Haryana Vs.

Brij Lal Mittal and Others (supra), I do not think that

the order passed by the Additional Sessions Judge,

Nanded is sustainable. However, in the light of the

observations made by the Supreme Court in the case of

Muncipal Corporation of Delhi Vs. Ram Kishan Rohtagi

and Others (supra) in the instant case, the prosecution

can at any stage if produce evidence which satisfies the

Court that present applicant-original accused no.5 also

committed the offence, the Court can take cognizance

against him by taking recourse to the section 319 of the

10 CRI APPLN NO.1904.2003.odt

Code of Criminal Procedure. Thus, with these

observations I proceed to pass the following order.

O R D E R

I. Criminal application No.1904/2003 is hereby allowed in terms of prayer clause "B".

II. ig Rule is made absolute in the above terms and application is accordingly disposed off.

sd/-

( V.K. JADHAV, J. )

...

aaa/-