Rajasthan High Court - Jodhpur
Anil Tantia vs State & Anr on 2 February, 2012
Author: Sandeep Mehta
Bench: Sandeep Mehta
1
S.B. Criminal Misc. Petition No.1425/2008
Anil Tantia. vs. State of Rajasthan & Anr.
DATE OF ORDER : 2.2.2012
HON'BLE MR. JUSTICE SANDEEP MEHTA
Mr.GR Goyal, for petitioner.
Mr.MA Bhurat, PP, for the respondent State.
...
The present misc. petition has been preferred by the petitioner challenging the order dated 9.10.2007 passed by the Chief Judicial Magistrate, Sri Ganganagar in Case No.395/2007 (State vs. Firm M/s. Raghaw Medical Store & Ors.) taking cognizance initiated against the petitioner and others for the offences under Sections 27, 28 and 28A of the Drugs and Cosmetics Act, 1940 (for short 'the Act of 1940').
Succinctly stated the facts necessary for disposal of the present petition are that the Drug Control Officer, Sri Ganganagar inspected the shop of M/s. Raghaw Medical Store on 12.3.2007 on receiving an information about expired medicines and physician samples being sold by the shopkeeper. At the time of inspection, the partner of firm Mr.Ratan Lal Garg was present but the registered pharmacist was found absent. On the inspection being made, the medicines of which date had expired as well as physician samples were found lying with the other 2 medicines. The form no.16 (inspection memo) was prepared and offending medicines were seized and sealed in a carton after taking receipt from Ratan Lal Garg. Thereafter, during the course of enquiry, a notice was given to the firm for disclosing the details of its partners on which a document was submitted by the firm, as per which, the present petitioner and Mr.Ratan Lal Garg were stated to be partners of the firm.
A complaint was filed against the firm, its partners and the registered pharmacist in the Court of C.J.M., Sri Ganganagar for the infringement of various provisions of the Act of 1940. The learned C.J.M. proceeded to take cognizance on the complaint and summoned the petitioner as well as other accused persons by the impugned order. Hence, the instant misc. petition has been preferred challenging the impugned order dated 9.10.2007 and all subsequent proceedings sought to be taken against the petitioner in the aforesaid complaint.
Assailing the proceedings, counsel for the petitioner submits that the petitioner was simply a sleeping partner in the firm and that all the day to day affairs of the firm were being under taken by Ratan Lal Garg and the registered pharmacist who are responsible for infringement, if any, of the provisions of the Act of 1940 by the firm. Apart from the fact that the petitioner was a partner in the firm, there is no other allegation to the effect that the petitioner was 3 responsible for the day to day affairs of the firm and thus, it is submitted that the complaint and all proceedings qua the petitioner are liable to be quashed. In support of his contention, he places reliance on the decisions of the Hon'ble Apex Court in the case of (1) M/s. Pepsico India Holdings Pvt. Ltd. vs. Food Inspector & Anr. reported in 2011(1) SCC 176 and (2) State of Haryana Vs. Brij Lal Mittal reported in AIR 1998 SC 2327.
Per contra, learned PP has refuted the arguments advanced on behalf of the counsel for the petitioner and has submitted that all these arguments and objections can be raised by the petitioner at the trial because at the stage of taking cognizance, the learned Magistrate has to only see the existence of prima-facie material and the evidence in detail need not be considered at that stage. He thus submits that the instant misc. petition is liable to be dismissed.
I have given my thoughtful considerations to the arguments advanced at the bar and have perused the order impugned as well as the record of the case.
A perusal of the record reveals that in the complaint, apart from mentioning of the fact that the petitioner is one of the partners of the firm, there is no allegation that the petitioner was participating in the day to day affairs of the firm or was responsible for the day to day affairs of the firm. A perusal of the documents on the basis of which the 4 complaint has been filed reveals that only Ratan Lal Garg was present at the shop when the inspection was being done and as such, Ratan Lal Garg can very well be said to be responsible at this stage for the infringement committed by the firm. Ratan Lal Garg has signed the seizure documents and the seal which is appended on the seizure documents reveals that initially the seal was of Raghaw Medical Store with the proprietor being Mr.Ratan Lal Garg. Thereafter, it appears that there is an amendment in the seal and Mr.Ratan Lal Garg has been mentioned as a partner therein. For the purpose of implicating the petitioner, there has to be some averment in the complaint and the material in support thereof to show that the petitioner was also responsible for the day to day affairs of the firm. In absence of any such allegation, averments and material to show that the petitioner was responsible for the day to day affairs of the firm, the prosecution of the petitioner is impermissible in view of the observations of the Hon'ble Apex Court in the two cases referred to above.
Section 34 of the Act of 1940 makes it mandatory that before a partner of the firm or director of the firm can be prosecuted for the offence committed in relation to the affairs of the firm or company, as the case may be, there has to be specific averment in the complaint and material in support thereof to show that the partner or director sought to be prosecuted was responsible for the day to day affairs 5 of the firm or company. As has been stated above, in the present case, no such material or allegation exists in the complaint and the supporting documents. Thus, in the opinion of this Court, the complaint qua the petitioner is totally bereft of any material to sustain the order of cognizance.
Resultantly, the present misc. petition succeeds, the impugned order dated 9.10.2007 and all the proceedings pending before the Chief Judicial Magistrate, Sri Ganganagar in Case No.395/2007 (State vs. Firm M/s. Raghaw Medical Store & Ors.) qua the petitioner are hereby quashed.
Stay petition also stands disposed of.
(SANDEEP MEHTA), J.
S.Phophaliya