Bombay High Court
Smt. Rashmi Kamal Shah vs The Stateof Mah. Thr. Joint ... on 19 September, 2017
Bench: V.M. Deshpande
apl.680.11 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APL) NO. 680 OF 2011
Smt.Rashmi Kamal Shah,
Aged 37 years,
R/o Plot No.35,Yash Kamal Haria
Hospital Road, Vapi,Gujrat(India),
396195. ..... APPLICANT
...V E R S U S...
1. The State of Maharashtra,
Through Joint Commissioner,
Food and Drugs Administration(MS),
5th Floor, Administrative Building,
Civil Lines,Nagpur.440001.
2. Shri Atul Vijayrao Mandlekar,
(Drug Inspector)
Food and Drugs Adminstration (MS),
5th Floor, Administrative Building,
Civil Lines,Nagpur.440001. ...NON-APPLICANTS
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None for the applicant.
Shri R.S.Nayak, A.P.P. for State-non-applicants.
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CORAM:- V. M. DESHPANDE, J.
DATED :- SEPTEMBER 19 ,2017
ORAL JUDGMENT
The present application under Section 482 of Code of
Criminal Procedure is filed for the following relief.
(a) Quash and set aside the impugned order dated
24/12/2010 passed by the learned Additional Chief
Judicial Magistrate,Nagpur in R.C.C.No.3760/2010 and
further be pleased to dismiss the above complaint case
against the present applicant.
(b) ......................
(c) ......................
2] Complainant Shri Atul Vijayrao Mandlekar is a Drug
Inspector appointed under Section 27(d) of the Drugs and
Cosmetic Act,1940( herein after referred to as " the Act" for the
sake of brevity) and was authorised to institute prosecution under
Section 32 of the Act.
3] The complaint was filed for the offence punishable
under Section 18(a)(i) and Section 27(d) of the Act and rules
made thereunder. The said case was registered as
R.C.C.No.3760/2010.
4] The complaint was lodged against five accused persons.
Accused no.5 is M/s VAPPI CARE Pharma Private Limited.
Accused no.1 Shri Kamal J.Shah is Director , accused no.2 Mrs.
Rashmi K.Shah is also Director ,accused no.3 Mr.Prasanna S/o
Nandkishor Rout was Manufacturing Chemist and accused no.4
Shri B.J.Shingare was Analytic Chemist of accused no.5 M/s
VAPPI CARE Pharma Private Limited.
5] The present application is filed by Smt.Rashmi Kamal
Shah who is shown as accused no.2 in R.C.C.No.3760/2010 filed
on behalf of the complainant-non-applicant no.2. Complainant
on 12/8/2010, visited the premises of M/s Flemingo
Pharmaceuticals Limited,Wadi,Nagpur. A sample of FLAMCLOV
Dry Syrup, Batch No.VFD9001, Manufacturing date 1/9/2009
,Expiry date 28/2/2011, manufactured by M/s VAPII CARE
Pharma Pvt.Ltd., Unit No.2, Village-Belikhol, Baddi Nalagarh
Highway, District-Sonal-174 101(H.P.)for test and analysis was
drawn under Form No.17.
6] On 13/8/2010, complainant sent sealed counter part of
the sample which was drawn by him alongwith Form No.18 to
the Government Analyst, Drug Control Laboratory, Mumbai for
the purpose of analysis and test.
7] The office of the complainant on 4/10/2010 received
test report from Govt.Analyst, Drug Control Laboratory, Mumbai
in form no.13 bearing No.M/3045/2010,dated 29/9/2010 by
which it was informed that the drug sent for analysis is " Not of
Standard Quality" for the reason " Content of Clavulanic Acid" in
the sample [ when freshly prepared is less 3.7998 of the labeled
amount] than IP 2007 limit as given in prorocol.
The contents of Clavulanic Acid in the sample [ when
stored] is less [0% of the labelled amount] than IP 2007 limit as
given in prorocol.
8] After receipt of this report, complainant on
11/10/2010 sent letter to M/S Flemingo Pharmaceuticals
Limited,Wadi,Nagpur alongwith the copy of the report and
directed the said M/s Flemingo Pharmaceuticals
Limited,Wadi,Nagpur to disclose the sale and purchase details of
the said drug.
9] M/s Flemingo Pharmaceuticals Limited,Wadi,Nagpur
disclosed the source of the said drug and submitted the sale-
purchase details and other relevant documents.
10] On 25/10/2010, complainant visited the office of the
Assistant Drug Controller and Licensing Authority -cum-
Controlling Authority,Baddi,District-Solan(H.P.) and submitted
the copy of letter from Joint Commissioner,Nagpur and thereafter
visited the unit of accused no.5 alongwith Shri C.K.Dange, Drugs
Inspector, Food and Drugs Administration,Nagpur. Shri Sunil
Surve, Plant Manager of the accused no.5 was present at the time
of visit. Complainant handed over the sealed counter part of the
sample alognwith report No.M/3045/2010,dated 29/9/2010 in
compliance with Section 23(4)(iii) and 25(2) of the Act, and also
directed him to furnish all relevant details in respect of the
licence, constitution, manufacturing, testing and distribution
record of drug in question. With these bare facts the complaint
was lodged against the accused persons including the applicant.
11] The learned Additional Chief Judicial Magistrate,
Nagpur on 24/12/2010 issued summons to all accused persons.
Same is questioned before this Court.
12] Since nobody has appeared on behalf of the applicant,
this Court with the assistance of learned A.P.P. representing the
non-applicants scrutinised the application under Section 482 of
the Code of Criminal Procedure. It is asserted in the application
that the present applicant submitted her resignation from accused
no.5 M/s VAPPI CARE Pharma Private Limited and the copy of
the said resignation was duly submitted to the Registrar of
Companies and thus she is not director of accused no.5 M/s
VAPPI CARE Pharma Private Limited since 5/11/2008. According
to application under Section 482 of the Code of Criminal
Procedure, complainant paid visit to M/s Flemingo
Pharmaceuticals Limited,Wadi,Nagpur on 12/8/2010,thus after
resignation of the applicant. The ground is also raised in the
application that no role is attributed against the present applicant
and therefore, the complaint against the applicant ought to have
been dismissed.
13] In order to test the aforesaid grounds it would be
useful to refer to paragraph nos. 2 and 3 in the complaint itself
and those are reproduced herein under:
" 2]That, the accused nos. 1 and 2 are the Directors of
the accused no.5 i.e. M/s VAPPI CARE Pharma Private
Limited,Unit No.2,Village-Belikhol,Baddi Nalagarh
Highway, District Sonal-174101 (H.P.) and hence
responsible for manufacturing of not of Standard
Quality Drug, FLAMCLOV Dry Syrup,Batch No.VFD
9001,Manufacturing date 1/9/2009, expiry date
28/2/2011.
3]That, the accused no.3 is the then manufacturing
chemist and the accused no.4 is the then analytical
chemist appointed by the accused no.5. As drug in
question manufactured and tested under their
supervision they are responsible for manufacturing of
Not of Standard Quality Drug FLAMCLOV Dry
Syrup,Batch No.VFD9001,manufacturing date
1/9/2009 , expiry date 28/2/2011."
14] Beside the averments in paragraph no.2 in the
complaint, there are no other allegations or any whisper against
the present applicant.
15] While admitting this application for final hearing on
6/8/2012 it was observed by this Court that applicant has
resigned as director of M/s VAPPI CARE Pharma Private Limited
on 5/11/2008. The reply filed by the State is totally silent on the
said issue, even learned A.P.P. was unable to satisfy the queries
made in that behalf by this Court. Thus, it is crystal clear that on a
day when the drug was manufactured i.e. 1/9/2009 the
complainant was not the director of accused no.5 M/s VAPPI
CARE Pharma Private Limited.
16] Though, this application can be allowed on this short
ground, this Court further observed that merely because a person
is a director, as per the scheme of the Act, merely because he or
she is a director that by itself is not sufficient to bring such person
within the clutches of the Act, if the said director is not
responsible for the day to day affairs of the company.
17] The paragraph no.3 of the complaint specifically states
that accused no.3 Mr.Prasanna Nandkishor Rout at the relevant
time was the manufacturing chemist and accused no.4 Shri
B.J.Shingare was analytic chemist appointed by accused no.5
M/s VAPPI CARE Pharma Private Limited and drug in question
was manufactured and tested under their supervision and they are
responsible for manufacturing of 'Not of Standard Quality'. At the
same time, the complaint is totally silent in respect of the role of
the present applicant.
18] Section 34 of the Act deals with the offences by
companies. The Section 34 of the Act is reproduced herein as
under:
" Offences by companies:- (1) Where as offence under
this Act has been committed by a company, every person
who at the time of the offence was committed, was
incharge of, and was responsible to the company for the
conduct of the business of the company, as sell as the
company shall be deemed tobe guilty of the offence and
shall liable tobe 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) Not withstanding 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 negligent 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 purpose 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."
19] The reading of sub-Section 2 of Section 34 of the Act
shows that 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.
20] Thus, sub-Section 2 of Section 34 of the Act clearly
mandates that in order to launch prosecution against the director,
manager, secretary or any other officer of the company then it is
obligatory on the part of the complainant to show that the
offence is committed with the consent or connivance. Merely
because that a person is director is not self sufficient to establish
that the offence is committed with his consent or connivance in
the absence of basic pleading in that behalf. Couple with the
same, at the time of manufacturing of the drug in question the
applicant was not director of the company at all. In that view of
the matter, the continuance of the criminal complaint against the
present applicant is nothing but abuse of process of law.
Consequently, I pass the following order.
ORDER
I) The application is allowed.
II) The R.C.C.No.3760/2010 pending on the file of
learned Additional Chief Judicial Magistrate,Nagpur is
hereby dismissed qua applicant Smt.Rashmi Kamal
Shah.
III) The learned Additional Chief Judicial Magistrate,
Nagpur is directed to proceed with the matter qua
remaining accused and shall dispose of the same as
expeditiously as possible.
Rule is made absolute.
JUDGE
kitey
