Sri. Rahul Kumar vs State At The Instance Of Assistant
2022 Latest Caselaw 4014 Kant

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 9TH DAY OF MARCH, 2022

                         BEFORE

          THE HON'BLE MR. JUSTICE K.NATARAJAN

             CRIMINAL PETITION NO.8224/2016

BETWEEN

SRI. RAHUL KUMAR
AGED ABOUT 34 YEARS,
S/O LATE SRI ASHOK CHAUDHARY,
PRESENT DIRECTOR,
M/S FRANCIS REMEDIES (IND)PVT LTD
R/AT NO. 151/18/4
JAKHAN RAJPUR ROAD,
DEHRADUN
UTTARAKHAND - 248 001.                     ... PETITIONER

(BY SRI DESU REDDY G, ADVOCATE)

AND

STATE AT THE INSTANCE OF ASSISTANT
DRUGS CONTROLLER -2
BENGALURU CIRCLE - 2
DRUGS CONTROL DEPARTMENT,
PALACE ROAD,
BENGALURU - 560 001.                     ... RESPONDENT

(BY SRI MAHESH SHETTY, HCGP)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO QUASH
THE ENTIRE PROCEEDINGS IN C.C.NO.201/2016 ON THE FILE
OF P.O., SPL. COURT FOR ECONOMIC OFFENCES, BANGALORE.

      THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
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                           ORDER

This petition is filed by the petitioner-accused No.2

under Section 482 of Cr.P.C., for quashing the entire

proceedings in C.C.No.201/2016 on the file of Special

Court for Economic Offences, Bangalore for the offences

punishable under Section 18 (a) (i) read with Section 17B

(d) and Section 27(c) of the Drugs and Cosmetics Act 1940

(referred hereinafter as 'Act').

2. Heard the arguments of learned counsel for the

petitioner and learned High Court Government Pleader for

the respondent.

3. The case of the current complainant before the

trial court is that the complaint filed under Section 200

Cr.P.C alleging that when the assistant drug controller on

30.06.2014 collected sample of drug PENTO-DSR

(Pantoprazole & Domperidone Sustained Release Capsules)

B.No.C-3067, D/M.03/13, D/E.02/15, manufactured along

with accused No.1 and 3, on 30.06.2014 and thereafter

the same was sent to the lab and received the report from

the lab on 31.07.2014 where the said drug sample drawn

from the said pharmacist was found sub-standard which

was not in standard quality. Therefore he had sent

requisition to the manufacturer, the accused No.1-

Company where the information was given that the

accused No.2 is responsible for the day to day affairs of

the company with effect from 10.01.2014, as the previous

director Anuj Singh was dead. Based upon the report the

complaint filed against this petitioner/accused No.2 holding

him responsible for the day to day affairs of accused No.1-

Company as per Section 34 of the said Act. Being

aggrieved the petitioner filed this petition before this

Court.

4. Learned counsel for petitioner mainly contended

that as on the date of manufacture i.e., in March 2013.

The accused company was not the responsibility of this

petitioner as he became Director only on 10.01.2014

onwards. Therefore he is not responsible as per Section

34 of the said Act and the act is committed by some other

person but the petitioner is not responsible for taking the

punishment, hence prayed for quashing the criminal

proceedings. In support of his contention he has also

produced letter sent to the drug licensing and controlling

authority dated 24.04.2015 stating that this petitioner

became the Director of the said company with effect from

10.01.2014.

5. Per Contra learned HCGP objected this petition

and contended that this petitioner was in charge of the

company as on the date of drawing the sample and he has

sworn the affidavit stating that he is responsible for the

day to day affairs of the company as per Section 34 of the

said Act and he has not stated about the date and the

letter also given without showing who is responsible for the

day to day affairs of the Company as on the date of

manufacture. However, in another case this petitioner

had admitted the guilt and paid fine of Rs.20,000/- by

accepting responsibility of the said offence. Hence, prayed

for dismissal of the petition.

6. Upon hearing the arguments and on perusal of

the records, it is not in dispute that the accused No.1,

Francis Remedies India Pvt. Ltd., is the manufacturing

Compnay, the said drugs where sample was drawn by the

inspector as on 30.06.2014 and as per the science lab

report dated 31.07.2014, it is categorically mentioned the

manufacturing date as on March 2013 and the previous

director-Anuj Sing who expired on February 2015, which

clearly shows the drugs was manufactured in March 2013.

Admittedly as per the affidavit submitted by this petitioner

to the drug licensing authority that he will become

responsible for the day to day affairs of the manufacture of

the drugs as per Section 34 of the said Act, only from

10.01.2014 and the letter issued by him as on 24.04.2015

on the request made by the complainant stating that one

Anuj Singh was responsible for day to day affaris of the

company at the time when sample of the product was

taken by the drug inspector and after the death of the said

Anuj Singh, this petitioner was director from 10.1.2014.

In spite of the receipt of this letter and affidavit the

complainant not chosen to make another correspondence

asking who was responsible immediately at the time after

the death of Anuj Singh and without correspondence the

complainant proceeded to file the complaint against this

petitioner by showing as accused No.2. On bear reading of

Section 34 of the said Act refers 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 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; and

(b) "director" in relation to a firm means a partner in the firm.

27-A. Penalty for manufacture, sale, etc., of cosmetics in contravention of this Chapter."

The above said provision clearly shows every person who

is incharge at the time of offence is responsible to the

company for the conduct of the business of company. Here

in this case one Anuj Singh said to be the director in

charge at the time of manufacture who is no more.

Therefore, for the offence committed by the company in

May 2013, petitioner cannot be responsible as per Section

34 of the said Act. It is further submitted that the

judgments of the Co-ordinate Bench in Crl.P.No.310/2015

dated 07.08.2018 it was categorically held that at the time

of manufacturing, the said accused was not responsible

and was not the director and he became director only

subsequent to the said manufacturing of the drugs.

Therefore the proceedings against this accused was

quashed by the co-ordinate of this Court.

7. Learned High Court Government Pleader submits

this accused admitted the guilt in another case

CC.No.123/2016 that itself do not become ground to

punish this petitioner as responsible under Section 34 of

the Act. However looking to the facts and circumstances of

the case, the accused No.1 who is a Drug Manufacturing

Company which was run by this petitioner-Director, the

inspector has not properly ascertained who is responsible

at the time of manufacturing drugs after immediate death

of Anuj Singh. Such being the case, filing charge sheet

against this petitioner showing petitioner as accused No.2

and making him liable or responsible for the day to day

affairs of the company for manufacturing in the year 2013

cannot be acceptable. Such being the case criminal

proceedings against the petitioner requires to be quashed.

Hence, this petition is allowed.

Consequently, the criminal proceedings against

accused persons in C.C.No.201/2016 on the file of Special

Court for Economic Offences, Bangalore for the offences

punishable under Section 18 (a) (i) read with Section 17B

(d) and Section 27(c) of the Drugs and Cosmetics Act

1940, is hereby quashed.

However as per section 305 of the Code of Criminal

Procedure, the company has been made as an accused and

therefore somebody should represent the company.

Therefore, the complainant can file necessary application

for seeking permission of the trial Court to represent

somebody on behalf of the accused - Company.

Sd/-

JUDGE

AKV