Rajasthan High Court - Jodhpur
Smt.Shanti Devi vs State on 5 January, 2017
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B.Criminal Misc(Pet.) No. 3169 / 2012
Smt. Shanti Devi W/o Late Vyaparilal Wadhwani, By caste Sindhi,
Aged 68 years, Resident of 710-C, Sector 11, Hiranmagari,
Udaipur (Raj.)
----Petitioner
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Petitioner(s) : Mr. M.K. Garg
Mr. Pankaj Gupta
For Respondent(s) : Mr. Vikram Singh Rajpurohit - PP
_____________________________________________________
HON'BLE MR. JUSTICE VIJAY BISHNOI
Judgment / Order 05/01/2017 This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioner being aggrieved with the order dated 23.11.2012 passed by the Additional District Judge, Nimbaheda Camp Badi Sadari, District Chittorgarh, (hereinafter referred to as' 'the revisional court') in Criminal Revision Petition No.48/2010, whereby the revision petition filed by the petitioner has been dismissed. The above revision petition has been filed by the petitioner being aggrieved with the order dated 26.11.2009 passed by the Additional Chief Judicial Magistrate, Nimbaheda, District Chittorgarh (hereinafter referred to as 'the trial court') in Criminal Case No.429/1992, whereby the trial court has framed (2 of 5) [CRLMP-3169/2012] charges against the petitioner and other persons for the offences punishable under Sections 27(B)(i) and 27(C) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as 'the Act of 1940').
Brief facts of the case are that on 16.11.1989 a complaint was filed before the trial court by the Drug Inspector, Chittorgarh alleging that on 17.12.1987, he had inspected the firm M/s. Mahaveer Medical Store, Nimbaheda and took samples of medicines from the shop, which was stocked there for the purpose of sale. It is alleged that sample of medicines Zintamicine Injection was sent for examination to the laboratory and as per the laboratory report, the same was found sub-standard. In the said complaint, the owner of the firm M/s. Mahaveer Medical Store, Nimbaheda, the representatives of the manufacturer firm and the proprietor and partners of the supplier firm have also been named as accused. The petitioner is one of the partner of the supplier firm.
Pursuant to the said complaint, the petitioner and other co- accused persons were summoned and statement of the Drug Inspector, Chittorgarh were recorded as PW-1 at pre-charge stage. After recording of the statement of the Drug Inspector, Chittorgarh, the trial court has framed charges against the petitioner and other co-accused persons for the offences punishable under Sections Sections 27(B)(i) and 27(C) of the Act of 1940.
Being aggrieved with the same the petitioner has filed revision petition before the revisional court, however, the said revision petition has been dismissed vide order dated 23.11.2012.
(3 of 5) [CRLMP-3169/2012] Hence, this criminal misc. petition.
Learned counsel for the petitioner has submitted that as a matter of fact the petitioner is one of the sleeping partner of the supplier firm and the day-to-day work of the firm was supervised and managed by partner Sunderlal Wadhwani. Learned counsel for the petitioner has also argued that the copy of the partnership- deed of the supplier firm is available on record and as per the partnership-deed, the petitioner and one another partner Smt. Ashu Devi were sleeping partners and only Sunderlald Wadhwani was authorised to look after day-to-day work of the firm. Learned counsel for the petitioner has, therefore, argued that as per Section 34 of the Act of 1940, when the petitioner was not looking after day-to-day work or conduct of business of the partnership firm, she cannot be charged for the offences punishable under Sections Sections 27(B)(i) and 27(C) of the Act of 1940.
In support of the above contentions, learned counsel for the petitioner has placed reliance on the decision of Hon'ble Supreme Court rendered in State of Karnataka Vs. Pratap Chand & Ors. reported in AIR 1981 Supreme Court 872 and the decision of this Court rendered in Smt. Harshila Lodha & Anr. Vs. State of Rajasthan reported in 2002 CRI.L.J. 4054 and prayed that the order passed by the courts below may kindly be quashed.
Per contra, learned Public Prosecutor has argued that there is no illegality in the impugned orders passed by the courts below as the petitioner was one of the partner of the supplier firm, which has supplied the injection to the M/s. Mahaveer Medical Store, Nimbaheda and the said injection was found sub-standard and, (4 of 5) [CRLMP-3169/2012] therefore, the courts below have rightly framed charges against the petitioner for the offecnes punishable under Sections Sections 27(B)(i) and 27(C) of the Act of 1940.
Heard learned counsel for the petitioner and perused the impugned orders as well as the record of the case, the copy of which is supplied by the learned Public Prosecutor.
The Drug Inspector, Nimbaheda, during the course of investigation has collected the copy of the partnership-deed of M/s. Lakhmichand & Sons, the supplier firm, who has supplied the injection to M/s. Mahaveer Medical Store, Nimbaheda and the petitioner is one of the partner out of three partners of the said firm.
In Clause-8 of the partnership-deed, it is clearly mentioned that Sundarlal S/o Lakhmichand will only be responsible for day- to-day business of partnership firm. It is also to be noticed that in the complaint filed by Drug Inspector, Nimbaheda there is no mention that the petitioner was responsible for day-to-day work or the business of the supplier firm. The Drug Inspector, Nimbaheda in his statement recorded as PW-1 has nowhere stated that the petitioner was involved in day-to-day business of the firm.
From the recital of the partnership-deed and the other evidence, it can very well be said that the petitioner was a sleeping partner of the firm.
The Hon'ble Supreme Court as well as this Court in the above referred judgments have clearly held that a sleeping partner of a firm, who is not actively participated in the conduct of business, cannot be prosecuted for the violation of the provisions (5 of 5) [CRLMP-3169/2012] of the Act of 1940.
In such circumstances, taking aid from the above referred judgments and over all the facts and circumstances of the case, this criminal misc. petition is allowed. The impugned order dated 26.11.2009 passed by the Additional Chief Judicial Magistrate, Nimbaheda, District Chittorgarh in Criminal Case No.429/1992 and the order dated 23.11.2012 passed by the Additional District Judge, Nimbaheda Camp Badi Sadari, District Chittorgarh in Criminal Revision Petition No.48/2010 are hereby quashed.
The petitioner is discharge from the offences punishable under Sections 27(B)(i) and 27(C) of the Drugs and Cosmetics Act, 1940.
It is made clear that the trial against the other accused persons will continue.
Stay petition is disposed of.
(VIJAY BISHNOI)J. Abhishek Kumar S.No.2