Jammu & Kashmir High Court
Bhawna Gulati vs Senior Drugs Inspector & Anr on 13 June, 2023
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRMC No.76/2012
CrlM No.568/2023
c/w
CRMC No.246/2012
CRMC No.247/2012
CRMC No.248/2012
CRMC No.300/2014
IA No.353/2014
CRMC No.282/2017
IA No.1/2017
CRMC No.283/2017
IA No.1/2017
CRMC No.284/2017
IA No.1/2017
CRMC No.648/2018
IA No.1/2018
Reserved on 08.06.2023
Pronounced on 13.06.2023
Bhawna Gulati ....Petitioner(s)/Appellant(s)
Through :- Mr. Aditya Gupta, Advocate.
V/s
Senior Drugs Inspector & Anr. ....Respondent(s)
Through :- Mr. Amit Gupta, AAG.
CORAM: HON'BLE MR. JUSTICE MA CHOWDHARY, JUDGE
JUDGMENT
1. The above nine petitions in terms of Section 561-A of J&K CrPC (akin to Section 482 CrPC) have been preferred by the petitioners seeking setting aside of the orders taking cognizance against them under various complaints filed under Drugs & Cosmetics Act, 1940 as per the following tabular details:
Sr. CRMC No. Title Complaint No. & Title
No.
1 76/2012 Bhawna Gulati vs. Senior 344/Complaint „State vs. M/S Samrat
Drugs Inspector & Anr. Surgicals Pvt. Ltd.& Ors.‟
2 246/2012 Bhawna Gulati vs. Senior 154/Complaint „State of J&K vs. M/S
Drugs Inspector & Anr. Samrat Surgicals Pvt. Ltd.& Ors.‟
2 CRMC No.76/2012 a/w 8 other petitions
3 247/2012 Bhawna Gulati vs. Senior 152/Complaint „State of J&K vs. M/S
Drugs Inspector & Anr. Samrat Surgicals Pvt. Ltd.& Ors.‟
4 248/2012 Bhawna Gulati vs. Senior 153/Complaint „State of J&K vs. M/S
Drugs Inspector & Anr. Samrat Surgicals Pvt. Ltd.& Ors.‟
5 300/2014 Bhawna Gulati & Ors. vs. 18/Complaint „State vs. M/S Samrat
Sr. Drugs Inspector & Anr. Surgicals Pvt. Ltd.& Ors.‟
6 282/2017 Divyanshi Gulati & Anr. vs. 154/Complaint „State of J&K vs. M/S
State of J&K & Anr. Samrat Surgicals Pvt. Ltd.
7 283/2017 Divyanshi Gulati & Anr. vs. 37/152/23/Complaint „State of J&K
State of J&K & Anr. vs. M/S Samrat Surgicals Pvt. Ltd. &
Ors.
8 284/2017 Divyanshi Gulati & Anr. vs. 38/153/24/Complaint „State of J&K
State of J&K & Anr. vs. M/S Samrat Surgicals Pvt. Ltd. &
Ors.
9 648/2018 Sandeep Gulati vs. State of 344/Complaint „State vs. M/S Samrat
J&K & Anr. Surgicals Pvt. Ltd. & Ors.
2. As an identical question of law as to whether a complaint in terms of the Drugs and Cosmetic Act, 1940 („the Act‟) is maintainable against a company without there being any evidence with regard to its composition, these nine petitions are taken up for disposal by this common order.
3. The petitioners have sought quashment of proceedings against them in the complaints filed by the Drugs and Food Organization though respondent no. 1 Senior Drug Inspector in terms of Section 18a(1) read with Section 27(d) of the Act which have been entertained by the learned Chief Judicial Magistrate, Jammu (Trial Court), asserting therein that proceedings against the petitioners have been initiated against statutory provisions of the Act.
4. As per record, respondent-Drug Inspector filed the complaints inter alia against the petitioners as Managing Director/Proprietor of a company M/S Samrat Surgical Private Limited, the manufacturers of Absorbent Cotton Wool IP, Zig Zag Absorbent Cotton Wool IP, Rolled Bandages as during checking samples were lifted from the unit of the company in accordance with the provisions of the Act and sent to the Government Analyst who vide their reports 3 CRMC No.76/2012 a/w 8 other petitions described the samples as "Sample fails in packaging, surface active substance and other soluble substances" on different dates, as such the complaints were filed by the respondent herein for the commission of the offences punishable under Section 18a(1) read with Section 27 of the Act, as the petitioner‟s company had been found having committed the offence of manufacturing, sale, stock, exhibiting, offering for sale and distribution of the said material in question which was declared „not of standard quality.‟ The Trial Court on receipt of the complaints, entertained the same and took cognizance of the offences and issued process against the petitioners herein as accused.
5. Aggrieved of the complaint and the cognizance taken thereon and the issuance of process, the accused as petitioners in these petitions filed these petitions invoking inherent jurisdiction of this Court seeking quashment of the proceedings.
6. Learned counsel for the petitioner argued that the complaints had been filed by the complainant-respondent and entertained by the Trial Court by taking cognizance thereon against the provisions of Section 32-A of the Act, which vests powers with the Court to implead manufacturer as an accused. Though the petitioners have raised a number of grounds challenging the impugned complaints and the proceedings emanating therefrom, but the main ground that has been raised during the course of arguments is that the petitioners have been impleaded as an accused in the complaints without there being any evidence against it/him/her and that the learned Magistrate while issuing process against the accused has not followed the procedure prescribed under law. It has also been contended that there are no allegations against the petitioners in the impugned complaints inasmuch as it is nowhere stated in the complaints that the petitioners were the persons responsible for conducting the day to day business 4 CRMC No.76/2012 a/w 8 other petitions of the company. It is further contended that the company of which the petitioners are the Director(s) has not been impleaded as an accused, as such, the complaints cannot proceed against the petitioners.
7. In order to test the submission of the learned counsel for the petitioners, Section 32-A of Act, which vests powers with the Court to implead manufacturer etc., as an accused is required to be taken into account. From a perusal of Section 32-A of the Act, it is clear that for impleading a manufacturer or some other person as an accused, the Court has to be satisfied on the basis of the evidence adduced before it that such person is also concerned in that offence. The provisions clearly indicate that the impleadment of an additional accused can be resorted to only by the Trial Court on satisfaction about the involvement of such additional accused based on the evidence that has been adduced during the trial.
8. After some initial resistance, Mr. Amit Gupta, learned AAG has fairly conceded the proposition on the subject that it is only after the trial has commenced and the evidence has been led that power to implead manufacturer or any other person that appears to be involved in the offences can be exercised and prior to that no such power can be exercised.
9. In all the cases, the learned Magistrate, at the very outset, after lodging complaints by the respondents had issued the process against the petitioners as accused in all the complaints. In fact all the complaints were still at the stage of summoning at the relevant time, therefore, the impugned orders whereby the process issued against the petitioners by the learned Magistrate as accused is contrary to the procedure prescribed under law. On perusal of the copies of the complaints placed on record, it is clear that the respondents as complainant at 5 CRMC No.76/2012 a/w 8 other petitions their own had arrayed the petitioner as accused without seeking any orders from the learned Magistrate for their impleadment as additional accused.
10. It has also been noticed that the petitioners have been shown as Director(s) of the company and arrayed, whereas legally as per Section 34 of the Act, it is only the person incharge of and responsible for the conduct of business of the company who can be deemed to be guilty of the offences along with the company but in the instant cases the averments in this regard are completely missing. Learned Magistrate in absence of any evidence brought on record by the complainant with regard to the fact as to who was incharge and responsible for the conduct of the business of the company, had issued process against the petitioners.
11. Another important question in such cases is as to whether a Director or a Proprietor of a company can be proceeded against without impleading the company as accused, this question, however, is no longer res integra, the Apex Court in case titled „Aneeta Hada vs. M/S Godfather Travels and Tours Pvt. Ltd.‟, reported as (2012) 5 SCC 661 has clearly laid down that there can be no vicarious liability in criminal law, expect in a case, where a statute specifically provides so. While interpreting the provisions contained in Section 141 of the Negotiable Instruments Act, which are in pari materia with the provisions contained in Section 34 of the D&C Act, the Supreme Court held that in the absence of arraigning of a company as an accused, the complaint for offences under Section 138 of the Negotiable Instruments Act cannot proceed against the Directors and office bearers of the company. This Court following the aforesaid judgment of the Apex Court also in a case of „Ashish Damija & Anr. Vs. UT of J&K‟ [CRM(M) No.14/2021 and CRM(M) No.303/2019] decided on 04.08.2022, has held that prosecution against the Director of a company or a 6 CRMC No.76/2012 a/w 8 other petitions partner of a firm cannot proceed without impleading the company/firm as accused.
12. Since the learned counsel for the respondents has fairly conceded that the process should not have been issued by the learned Magistrate against the petitioners without recording satisfaction as to whether they were incharge of and responsible for the conduct of the business of the company, after recording some evidence and the legal position as discussed hereinabove, this Court is of the opinion that the impugned orders regarding summoning of the petitioners passed by the learned Trial Magistrate in all the complaints are not sustainable.
13. Having regard to the foregoing reasons and observations made hereinabove, the impugned orders in all the petitions qua petitioners are, thus, quashed invoking the inherent jurisdiction of this Court and the learned Trial Magistrate is directed to proceed in the cases in accordance with law, particularly in view of Section 32-A and 34 of the Act. The petitioners are directed to cause appearance before the Trial Court for further orders on 05.07.2023. This order shall be placed across all the files and copies thereof shall also be forwarded to the Trial Court along the Trial Court record, if any, for the information and compliance.
14. These petitions along with pending application(s) are disposed of.
) (MA CHOWDHARY) JUDGE Jammu:
13.06.2023 Surinder Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No SURINDER KUMAR 2023.06.13 12:02 I attest to the accuracy and integrity of this document