SHANIMUL FATHIMA Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioners are some among the accused (Al to A3) in a pending case on the file of the Chief Judicial Magistrate, Kollam. Second respondent is the remaining accused in the above case, which arose on a complaint filed by the 3rd respondent, Drugs Inspector, Kollam. Petitioners 1 and 2 (A2 and A3) are proceeded as directors of a company. That company is the 1st accused, and its manufacturing chemist the 4th accused in the case. All the aforesaid four accused are being prosecuted on the complaint of Drugs Inspector, filed under Section 32 of the Drugs and Cosmetics Act {for short 'the Act'} alleging that they have committed the offences under Section 18(a)(iv) of the Act, punishable under Section 27(d) of the Act. Petitioners (Al to A3) have filed the above petition to quash the criminal proceedings against them exercising inherent powers of this court under Section 482 of the Code of Criminal Procedure {for short "the Code"}contending that it is an abuse of process of the court.

(2.) Annexure A3 is the complaint. Crux of the allegations to prosecute the accused can be summed up thus: Complainant (Drugs Inspector) inspected the premises of a pharmaceuticals viz., M/s. Western Pharma in Kollam on 01.02.2002. During such inspection 200 numbers of insulin syringe with microfine needle manufactured by the 1st accused company were found stocked for sale. On the pouch of insulin syringe with microfine needle expiry was printed as five years from the date of manufacturing. The date of manufacturing/sterilization was not printed on the pouch of disposable syringe. Without printing the date of manufacturing imprinting the pouch that expiry was five years from the date of manufacturing amounted to violation of Rule 96(1)(vii) of the Drugs and Cosmetics Rules {for short 'the Rules'} J. Since the pouches of disposable syringes were not labelled in the prescribed manner, they were misbranded under Section 17(b) of the Act, is the case of the complainant. Seizing the material objects and relevant records, and taking further steps as contemplated under the Act and Rules, complaint was laid before the magistrate indicting the accused persons for the offences stated supra. Cognizance of the offences taken and process ordered, petitioners, two directors with the company (A2, A3 and Al respectively) have filed the above petition under Section 482 of the Code to quash the criminal proceedings against them.

(3.) Challenge is against the inclusion of directors of the company and also the company among the accused to prosecute them for the offences stated in Annexure A3 complaint. Only A4, the manufacturing chemist, can be proceeded against in the case as he was in charge of manufacturing the syringes and responsible to the company in the conduct of business of the company, is the case canvassed banking upon some of the annexures produced with the petition. Learned counsel for the petitioners, relying on Annexures Al and A2 issued by the company with respect to the Standard Operating Procedure, contended that 2nd respondent, manufacturing chemist of the company, arrayed as A4 in Annexure A3 complaint, alone can be proceeded, if at all there was any violation of the provisions of the Act and Rules in relation to absence of any particulars required in the pouches of the syringe manufactured by the company. At any rate, petitioners 1 and 2 (A2 and A3) directors of the Company, cannot be prosecuted on the allegations set out in the complaint, is the submission of learned counsel contending that there is not even a whisper in the complaint that they or any of them, are in charge and control of the company. Adverting to sub-section (1) of Section 34 of the Act, it is contended that a person 'in charge' and 'responsible to the company for the conduct of the business of the company' alone can be imputed with culpability for violation of the Act and Rules and not others, even if they are directors of the company or partners of a firm, as the case may be. Where there is no allegation even prima facie to show that petitioners 1 and 2 (A2 and A3) were in charge of the company and also responsible for the conduct of the business of the company, their prosecution on Annexure A3 complaint is unsustainable and liable to be quashed, is the submission of the counsel. Reliance is placed on State of Karnataka v. Pratap Chand and other, 1981 2 SCC 335, Sham Sundar v. State of Haryana, 1989 AIR(SC) 1982and State of Haryana v. Brij Lal Mittal, 1998 AIR(SC) 2327by the learned counsel to contend that only the person who is in charge and control of the company at the relevant time could be prosecuted, and petitioners 1 and 2, for the sole reason that they are directors of the company, that too without any allegation that they were in charge of the business of the company, are not liable to be proceeded against. Criminal proceedings against petitioners 1 and 2 (A2 and A3) who are proceeded as directors of the company have to be quashed exercising the inherent powers of this court, submits the counsel.