Bombay High Court
M/S Dabur Indira Ltd Unit Iv Lane No3 ... vs The State Of Maharashtra Thr. At Thr ... on 27 September, 2018
Author: V.M.Deshpande
Bench: V. M. Deshpande
1 APL191.18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION (APL) NO. 191 OF 2018
APPLICANTS : 1] M/s Dabur India Limited,
Unit IV, Lane No.3, Phase II, SIDCO,
Industrial Complex, Bari Brahmana,
Jammu - 181 133 (Jammu & Kashmir)
2] Pritam Das Narang,
Director of M/s Dabur India Limited,
Unit IV, Lane No.3, Phase II, SIDCO,
Industrial Complex, Bari Brahmana,
Jammu - 181 133 (Jammu & Kashmir)
R/o B-117, Neeti Bagh,
New Delhi - 110 049.
3] Sunil Duggal,
Director of M/s Dabur India Limited,
Unit IV, Lane No.3, Phase II, SIDCO,
Industrial Complex, Bari Brahmana,
Jammu - 181 133 (Jammu & Kashmir)
R/o P-10, Hauz Khas Enclave,
1st Floor, New Delhi 110 016.
4] Alok Gupta,
M/s Dabur India Limited,
Unit IV, Lane No.3, Phase II, SIDCO,
Industrial Complex, Bari Brahmana,
Jammu - 181 133 (Jammu & Kashmir)
5] Ganesh Paul,
Analytical Chemist of M/s Babur India
Limited, Unit IV, Lane No.3, Phase II,
SIDCO Industrial Complex, Bari Brahmana,
Jammu - 181 133 (Jammu & Kashmir)
VERSUS
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NON-APPLICANTS : The State of Maharashtra,
at the instance of Smt. Taji Shahnaz
Farhat Abdul Khalil, Drugs Inspector,
Food and Drugs Administration (M.S.),
Wardha.
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Mr. Akshay A. Naik, Advocate for the applicants.
Mr. V. P. Maldhure, A.P.P. for the non-applicant/State.
.
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CORAM : V. M. DESHPANDE, J.
DATE : SEPTEMBER 27, 2018.
ORAL JUDGMENT
1. Rule. Rule is made returnable forthwith. Heard finally by consent of the learned counsel for the parties.
2. I have heard Mr. A. A. Naik, the learned counsel for the applicants and Mr. V. P. Maldhure, the learned Additional Public Prosecutor for the non-applicant/State.
3. The present application under Section 482 of the Code of Criminal Procedure is filed by five applicants for quashing and setting aside the criminal complaint bearing Summary Criminal Case No. 5143/2017 pending on the file of learned Chief Judicial Magistrate, ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:25:48 ::: 3 APL191.18.odt Wardha along with a prayer to quash and set aside the order dated 27.10.2017 passed by the learned Chief Judicial Magistrate, Wardha of issuance of process against the applicants.
4. Applicant no.1 is a Company incorporated under the Companies Act, 1956. Applicant no.2 - Pritam Das Narang and applicant no.3 - Sunil Duggal are the Directors of applicant no.1 - Company, whereas applicant no.4 - Alok Gupta and applicant no.5 - Ganesh Paul are the employees of applicant no.1 - Company.
5. At the beginning of the submissions itself, Mr. Naik, the learned counsel for the applicants, on instructions, submits that though application under Section 482 of the Code of Criminal Procedure is filed for and on behalf of the Company, its two Directors and Two employees, he is not pressing the application insofar as applicant no.1 - Company and applicant nos.4 and 5 the employees of the Company are concerned and he is pressing the application only in respect of applicant nos.2 and 3, who are the Directors of the Company.
6. Smt. Taji Shahnaz Farhat Abdul Khalil, the Drug Inspector, ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:25:48 ::: 4 APL191.18.odt has filed a complaint against the applicants in the Court of learned Chief Judicial Magistrate, Wardha for contravening Section 18(a)(ii) read with Section 16 punishable under Section 27A(ii) of the Drugs and Cosmetics Act, 1940 and the Rules made thereunder. The said complaint is registered as Regular Criminal Case No. 5143/2017. The complaint discloses that complainant received the papers of investigation from Smt. Swati Bharde, the then Drug Inspector, on 17.6.2016 in respect of "Not of Standard Quality Cosmetic i.e. "DABUR GULABARI ROSE GLOW FACE CLEANSER", Batch No.JK0013, Manufacturing Date - 07/2015, Expiry date - 07/2017.
7. Mr. Naik, the learned counsel for the applicants submitted that insofar as applicant nos.2 and 3, the Directors of applicant nos.1-Company, are concerned, the only allegations against them are found in paragraphs 5, 6 and sub-para 2 under the head -
"Investigation Made by the Complainant revealed as under :". He submits that except this, there is no whisper of any allegation against them. He submitted that the complaint is conspicuously silent with assertion of material particulars against them that they are in-charge of conduct of business and responsible for day to day affairs of ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:25:48 ::: 5 APL191.18.odt applicant no.1 - Company. He, therefore, submitted that the complaint against them is required to be quashed. He relied on the judgment of this Court in Criminal Application No. 1842/1996 between Charandas Vallabhdas Mariwala and others .vs. State of Maharashtra and others, dated 10th July, 2014 (Coram :
V.M.Deshpande,J.)
8. Section 34 of the Drugs and Cosmetics Act, 1940 pertains to the offences by the Companies. The same is reproduced herein below :-
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 ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:25:48 ::: 6 APL191.18.odt 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.
9. A bare reading of the aforesaid provision shows that when an offence is 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 conduct of the business of the company. Sub-section 2 of Section 34 shows that a person, with whose consent or connivance or any negligent act is attributed on the part of any Director, Manager or Secretary, such Director, Manager or Secretary or any other officer can also be held to be guilty of that offence. It would be useful to reproduce as to what are the accusations against applicant nos.2 and 3 in the complaint and they are reproduced herein below :-
"(1) to (4) ........
5] That, the accused no.2 is the Executive Director of the Accused no.1 i.e. company M/s DABUR INDIA LIMITED, Unit IV, Lane No.3, Phase II, SIDCO, Industrial Complex, Bari Brahmana, JAMMU 181133 (J & K).
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7 APL191.18.odt 6] That, the accused no.3 is the Executive Director of the Accused no.1 i.e. company M/s DABUR INDIA LIMITED, Unit IV, Lane No.3, Phase II, SIDCO, Industrial Complex, Bari Brahmana, JAMMU 181133 (J & K).
(7) to (23). .............
The Investigation made by complainant revealed as under :
i] .........
ii] That, the accused no.2 and 3 are Executive Directors of the company i.e. M/s DABUR INDIA LIMITED, Unit IV, Lane No.3, Phase II, SIDCO, Industrial Complex, Bari Brahmana, JAMMU 181 133 (J & K).
iii] to [vi] ..........
10. Except the aforesaid allegations and/or assertions of facts, no other material is placed on record. Even the learned Additional Public Prosecutor also conceded in that behalf. From the aforesaid pleadings and assertions in the complaint, it is crystal clear that the assertions lack about material particulars against applicant nos.2 and 3 that they were in-charge of conduct of business or they were responsible for day-to-day affairs of the company when the alleged offence took place. The complaint is conspicuously silent that applicant nos.2 and 3 being the Directors, extended any type of consent or connivance or any negligence can be attributed on their part in respect of commission of the offence. ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:25:48 :::
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11. By now, the law is well settled in view of various decisions of the Hon'ble Apex Court. In S.M.S Pharmaceuticals Ltd. .vs. Neeta Bhalla and another, reported in (2005) 8 SCC 89 and in view of the decision of this Court in Charandas Mariwala's case (supra), by which it is ruled that the complaint must contain pleadings to the effect that the persons who are sought to be prosecuted are either in-charge of conduct of business or responsible for conduct of day to day affairs of the company.
12. In the present case, there is no whisper in the complaint that applicant nos.2 and 3 are responsible for day to day affairs of the company. On this short count itself, the present applicants are entitled for relief. Consequently, I pass the following order :
ORDER 1 The criminal application is partly allowed.
2. The application, insofar as applicant no.1 -
M/s Dabur India Ltd., applicant no. 4 - Alok Gupta and applicant no.5 - Ganesh Paul are concerned, is dismissed as not pressed.
3. The application, insofar as applicant no.2 - Pritam Das Narang and applicant no. 3 - Sunil ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:25:48 ::: 9 APL191.18.odt Duggal are concerned, is allowed.
4. Summary Criminal Case No. 5143/2017, pending on the file of learned Chief Judicial Magistrate, Wardha is quashed and set aside along with the order dated 27.10.2017 passed by the learned Chief Judicial Magistrate, Wardha for issuing summons qua applicant no.2 - Pritam Das Narang and applicant no.3 - Sunil Duggal only.
5. The trial Court should proceed further with the complaint insofar as remaining accused persons are concerned.
6. Interim stay, if any, stands vacated to that extent.
V.M.Deshpande, J.
Diwale ::: Uploaded on - 29/09/2018 ::: Downloaded on - 30/09/2018 01:25:48 :::