Mr.Bharat Chabildas Shah vs Union Of India
2021 Latest Caselaw 22604 Mad

                                                                           Crl.O.P. No.17107 of 2017

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 18.11.2021

                                                     CORAM

                              THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR

                                              Crl.O.P.No.17107 of 2017
                                        and Crl.M.P.Nos.10507 &10508 of 2017


                1.Mr.Bharat Chabildas shah

                2.Mr.Rajesh Sumanlal Shah

                3.Mr.Vijay Chhabildas Shah

                4.Mr.Suresh Chhabildas Shah

                5.Mr.Prakash Navin chandra Shah                                  ...Petitioners

                                                        Vs.
                1.Union of India
                  Represented by Drug Inspector
                  Office of the Deputy Drugs Controller(India)
                  Central drugs Standard Control Organization,
                  South Zone, 2nd floor,
                  Shastri Bhawan Annex
                  Chennai-600 006.

                2.M/s.Mepro Pharmaceuticals Private Limited
                  Represented by Chairman and others,
                  Unit II, Q Road, Phase IV, GIDC Wadhwan 363 035
                  District:Surendranagar, Gujarat                              ..Respondents
                PRAYER: Criminal Original Petition filed under Section 482 of Criminal
                Procedure Code, to call for the records in C.C.No.3647 of 2017 pending on the

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                                                                                Crl.O.P. No.17107 of 2017

                file of the Hon'ble X Metropolitan Magistrate, Egmore, Chennai, and quash the
                same against the petitioners herein.


                                  For Petitioners               : Mr.K.M.Aasin Shehzad
                                  For Respondents               : Mr.B.Sudhirkumar for R1
                                                                  Senior Panel Counsel
                                                                  Mr.R.Palaniandavan for R2

                                                     ORDER

This Criminal Original Petition has been filed to call for the records in

C.C.No.3647 of 2017 pending on the file of the X Metropolitan Magistrate,

Egmore, Chennai, and quash the same against the petitioners herein.

2. Heard the learned counsel for the petitioners and the learned counsel

for the respondents.

3. Learned counsel for the petitioners submitted that the petitioners have

been arrayed as A2 to A6 in C.C.No.3647 of 2017 preferred by the 1 st

respondent herein for the offence punishable under Section 27(d) of the Drugs

and Cosmetics Act, 1940 purportedly committed by 2nd respondent/1st accused.

There was no averment made in the complaint that the petitioners herein were

incharge and responsible for day to day affairs of the company. He further

submitted that they cannot be prosecuted without any specific averments made https://www.mhc.tn.gov.in/judis Page No.2/8 Crl.O.P. No.17107 of 2017

in the complaint and there is no whisper made with regard to the role of these

petitioners in conduct of the company affairs and business. The private

complaint has been filed by the Drug Inspector for the offence under Section

18(a)(i) of Drugs and Cosmetics Act, 1940 (hereinafter referred as Act).

The specific allegation made in the complaint is that the first accused is a

company manufacturing Aspirin. The Drug Inspector who had drawn the

sample (under Section 23 of the Drugs and Cosmetics Act) of Clopidogrel and

Aspirin Capsules, the same was analysed by the Government Analyst, Central

Drugs Testing Laboratory, Mumbai and declared that the sample is not of

standard quality as defined in Drugs and cosmetics Act, 1940. Since the subject

drugs do not conform to the I.P(Indian Pharmacopeia) 2014 with respect to the

test for Salicylic Acid in Aspirin Gastro-Resistant Tablet, he has given a private

complaint stating that the accused committed serious offences relating to Drugs

affecting the health and life of numerous citizens being patients and the penal

provisions of the special statutes have to be applied strictly. He further

contented that as per Section 34 of the Drugs and Cosmetics Act, 1940, in the

absence of any evidence to show that these petitioners are incharge of the day

to day affairs of the company, the complaint cannot be maintained against the

persons. Hence, he prayed to quash the proceedings.

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4. In support of his submission, he relied upon the judgment of this

Court reported in 2020 SCC Online Mad 14274 in the case of Medplus

Pharmacy, Rep. by its Director, K.S.Murali Krishna and another Vs

Paramesham Kasthuri in Crl.O.P.No.3906 of 2020 and also the judgment of

Himachal Pradesh High Court in Cr.MMO.No.29 of 2014 in the case of Ashok

Kumar Tyagi vs. State of H.P and others.

5. From the above judgments, it is made clear that when there is no

averment made in the complaint as to who was in charge of and responsible for

conduct of business, the prosecution is not maintainable.

6. Per contra, learned counsel for the respondents submitted that the

offence is serious and therefore, whether the persons were incharge of the

company at the time of occurrence is a matter of evidence and the same cannot

be gone into in this petition. At the outset, as indicated, the offence charged

against the company appears to be seriously affecting the human life. Now, the

private complaint has been lodged against the company and its Directors.

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7. It is relevant to extract Section 34(1) of the Drugs and Cosmetics Act,

1940, which read as follows:

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.”

8. This Court in one of the judgment in the case of Medplus Pharmacy,

Rep. by its Director, K.S.Murali Krishna and another Vs Paramesham

Kasthuri relying upon the above provision has held that there was no

averment made in the complaint as against the other person as to their role and

affairs of the company and they cannot be prosecuted. The similar view is also

taken by the Himachal Pradesh High Court. Of course, normally when the

company is prosecuted, the person who was incharge of the affairs of the

company alone has to be prosecuted and there must be a specific averment to be

made in the complaint.

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9. It is also relevant to note that Section 34(2) of the of the Drugs and

Cosmetics Act, 1940 is a non-obstante provision which makes it clear that

where an offence 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.

10. Section 34(2) of the of the Drugs and Cosmetics Act, 1940 is a

non-obstante clause and whether the Director has committed the offence with

consent or with knowledge is a matter of evidence and it can be seen only at the

time of trial.

11. In view of the above, this Court is of the view that merely because

there is no specific averment made in the complaint as against the individual

directors, it cannot be said that they are not liable for prosecution. At this stage,

it is premature to end the prosecution.

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12. Having regard to the specific provision, the non-obstante

clause whether or not, there was consent or negligence on the part of the

Directors has to be tested only at the time of trial after appreciation of evidence

by the Trial Court. Therefore, this Court is of the view that merely applying

Section 34(1) of the Drugs and Cosmetics Act, 1940, the prosecution cannot be

quashed at this stage. Accordingly, this criminal original Petition is dismissed.

Consequently, connected miscellaneous petitions are closed.

13. The learned counsel for the petitioners requested this Court to

dispense with the presence of the petitioners. Taking into consideration, the

facts and circumstances of the case, the presence of the petitioners are

dispensed with except for receipt of copies, answering the charges, questioning

under Section 313 Cr.P.C., or on any other date as may be required by the trial

Court. They shall be represented by a counsel, who shall cross examine the

witnesses on the same day, when they are examined in Chief.

18.11.2021 Index: Yes/No Internet: Yes/No msv

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N. SATHISH KUMAR, J

msv

Crl.O.P.No.17107 of 2017 and Crl.M.P.Nos.10507 &10508 of 2017

18.11.2021

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