Bombay High Court
Smt. Rashmi Kamal Shah vs The Stateof Mah. Thr. Joint ... on 19 September, 2017
Author: V. M. Deshpande
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
-------------------------------------------------------------------------------------------
None for the applicant.
Shri R.S.Nayak, A.P.P. for State-non-applicants.
-------------------------------------------------------------------------------------------
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.
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(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.
::: Uploaded on - 20/09/2017 ::: Downloaded on - 21/09/2017 01:46:31 ::: apl.680.11 3 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 ::: Uploaded on - 20/09/2017 ::: Downloaded on - 21/09/2017 01:46:31 ::: apl.680.11 4 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 ::: Uploaded on - 20/09/2017 ::: Downloaded on - 21/09/2017 01:46:31 ::: apl.680.11 5 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 ::: Uploaded on - 20/09/2017 ::: Downloaded on - 21/09/2017 01:46:31 ::: apl.680.11 6 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 ::: Uploaded on - 20/09/2017 ::: Downloaded on - 21/09/2017 01:46:31 ::: apl.680.11 7 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 ::: Uploaded on - 20/09/2017 ::: Downloaded on - 21/09/2017 01:46:31 ::: apl.680.11 8 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 ::: Uploaded on - 20/09/2017 ::: Downloaded on - 21/09/2017 01:46:31 ::: apl.680.11 9 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 ::: Uploaded on - 20/09/2017 ::: Downloaded on - 21/09/2017 01:46:31 ::: apl.680.11 10 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 ::: Uploaded on - 20/09/2017 ::: Downloaded on - 21/09/2017 01:46:31 ::: apl.680.11 11 ::: Uploaded on - 20/09/2017 ::: Downloaded on - 21/09/2017 01:46:31 :::