Karnataka High Court
Mr. Susanto Banerjee vs Union Of India on 7 August, 2018
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF AUGUST 2018
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL PETITION No.310/2015
BETWEEN:
1. Mr.Susanto Banerjee
Aged about 48 years
S/o Mr.Kedarnath Banerjee
Residing at:
Spring Field Apartments,
Sarjapura Road, Belandoor
Bangalore - 560 102.
2. Mr.Sanjeev Kumar Sethi
Aged about 47 years
S/o Mr.Meher Chand Sethi
Residing at:
No.24, Quitelands,
Gatchibowli
Hyderabad
Andhra Pradesh - 500 003.
3. Mr.Rajeev Mukundan
Aged about 41 years
S/o Mr.Kodumunda Pisharody Mukundan
Residing at:
No.151/1, Sairam Towers
Alexander Road
Secunderabad
Andhra Pradesh. ...PETITIONERS
(By Sri. Udaya Holla, Senior Counsel a/w
Sri Seetharam, Adv.)
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AND:
Union of India
Represented by Drugs Inspector
Office of Assistant Drugs Controller (1)
Central Drugs Standard Control Organization
Sub Zone, 2nd Floor, Palace Road
Bangalore - 560 001. ...RESPONDENT
(By Smt. Birdie Aiyyappa, CGC for
Sri B.P.Puttasiddaiah, Adv.)
This Criminal Petition is filed under Section 482
Cr.P.C., praying to quash the complaint at Annexure-A filed
by respondent in C.C.No.349/2014 pending before special
court for economic offence, Bangalore, for the offences under
Section 18(c) and p/u/s 27 (b) (ii) of Drugs and Cosmetic
Act, 1940, against the petitioner.
This Petition coming on for final hearing this day, the
Court made the following:
ORDER
This petition is filed by accused Nos.2 to 4 under Section 482 of Cr.P.C. praying to quash the complaint at Annexure-A filed by respondent in C.C. No.349/2014 pending before the Special Court for Economic Offences, Bengaluru, for the offences punishable under Sections 18(c) and 27(b)(ii) of Drugs and Cosmetics Act, 1940. 3
2. Brief facts of the case is that respondent- Complainant in CC No.349/2014 has alleged that on June 11, 2014 Mr. Sanjay Kumar Agrawal, Drugs Inspector, CDSCO Sub Zone, Bangalore and Mr.Lingaraj C., Drugs Inspector (HQ), State Drug Control Department, Bangalore, Karnataka visited the premises for an official inspection of M/s.Onco Therapies Limited, located at Plot No.284-B, Bommasandra Jigani link Road, Industrial Area, Anekal Taluk, Bangalore - i.e., Accused No.1 who is the manufacturer of drugs. It is further alleged that the complainant disclosed his identity and inspected the facility. The drug product Epirubicin Hydrochloride injection 200mg/100ml, Batch No.7801012 Mfg date. May-2013 Exp. April 2015; 7801013 Mfg. May-2013 Exp. April-2015 and 7801048 Mfg. June-2013 Exp.May-2015, were manufactured and exported without licence in Form-28D as per the Drugs and Cosmetics Rules 1945. The Inspector inspected the facility as per Schedule M of the Drugs and 4 Cosmetics Rules, 1945 and it was found during the inspection that the drug product Epirubicin hydrochloride injection 200mg/100ml, that is large volume parentaral, was manufactured without a licence in Form 28D by the company in the afore mentioned complaint. Therefore, the complaint was filed for taking action for violation of the Rules.
3. On the basis of the said complaint, the Court below took cognizance and issued process to the accused persons. Being aggrieved by the same, accused Nos.2 to 4 are before this Court in this petition.
4. I have heard learned Senior Advocate appearing for the petitioners-accused Nos.2 to 4 and the learned Central Government Counsel appearing for the respondent-Union of India.
5. Learned Senior Advocate appearing for the petitioners-accused Nos.2 to 4 submitted that looking to the complaint averments and the other materials, it 5 goes to show that there is no case made out by the respondent-complainant as against accused Nos.2 to 4. The Learned Senior Advocate submitted that the date of the alleged manufacture of drugs is much earlier to the accused Nos.2 to 4 becoming the Directors of the company. Therefore, for the offences alleged to be committed by the company, there cannot be vicarious liability when accused Nos.2 to 4 were not at all the Directors of the said company. They became the directors on 5.12.2013, much after the date of manufacture of the alleged drugs. Hence, it is the contention of the learned Senior advocate that on this ground, the complaint is not maintainable. Drawing attention of this Court to the allegations made in para No.4 of the complaint, the learned Senior Advocate made submission that there is no specific averments that accused Nos.2 to 4 are responsible for the conduct of day today business of the said company on the alleged date. Hence, on this ground also, he submitted 6 that merely because they were arrayed as Directors, that itself is not sufficient, unless there is specific allegation that they participated in the day today affairs of the company and that, they are responsible for the said act. The learned Senior Advocate submitted that without appreciating these aspects, both factual and legal, the Court below has wrongly passed the impugned order taking cognizance and issued process as against the petitioners-accused Nos.2 to 4 herein. In support of his contentions, the learned Senior Advocate has relied upon the following decisions:
1. State of Haryana -vs- Brij Lal Mittal and Others reported in (1998) 5 SCC 343
2. Keki Hormusji Gharda and Others -vs-
Mehervan Rustom Irani and Another reported in (2009) 6 SCC 475
3. S.M.S. Pharmaceuticals Ltd. -vs- Neeta Bhalla and Another reported in (2005) 8 SCC 89
4. Harshendra Kumar D. -vs- Rebatilata Koley and Others reported in (2011) 3 SCC 351 7
5. Anita Malhotra -vs- Apparel Export Promotion Council and Another reported in (2012) 1 SCC 520
6. State of NCT of Delhi through Prosecuting Officer, Insecticides, Government of NCT, Delhi
-vs- Rajiv Khurana reported in (2010) 11 SCC 469
7. Sunil Bharti Mittal -vs- Central Bureau of Investigation reported in AIR 2015 SC 923
8. M/s. Pepsi Foods Ltd. and Another -vs- Special Judicial Magistrate and Others reported in 1998 SC 128
9. Dinesh B.Patel and Others -vs- State of Gujarat and Another reported in (2010) 11 SCC 125
10. Municipal Corporation of Delhi -vs- Gurnam Kaur reported in (1989) 1 SCC 101
11. Vijay Narayan Thatte and Others -vs- State of Maharashtra and Others reported in (2009) 9 SCC 92
12. P.V.Balakrishana Reddy -vs- Director of Mines & Geology reported in I.L.R. 1990 KAR 1858
6. Per contra, learned CGC appearing for the respondent-Union of India submitted that after perusing the entire materials, the Court below has taken 8 cognizance in issuing the process. No licence was obtained, in form No.28D as required under the provisions of the Drugs and Cosmetics Rules, 1945, for the manufacture and sale of the said drugs. Hence, it is contended that there is violation of the provisions of Section 18 of the Drugs and Cosmetics Act, 1940, which is punishable under Section 27(b)(ii) of the said Act. It is also the submission of the learned CGC that the matter requires recording of evidence and those aspects in the present criminal petition filed under Section 482 of Cr.P.C., cannot be considered and decided by this Court. Hence, there is no merit in the petition and the same is to be rejected.
7. I have perused the grounds urged in the petition, the averments made in the private complaint which is subsequently registered as C.C. No.349/2014 and also the order of the Court below taking cognizance and ordering issuance of process.
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8. Looking to the contents of the complaint, as it is rightly submitted by the learned Senior Advocate, in para No.4 of the said private complaint, it is stated that accused No.1 M/s. Onco Therapies Limited, represented by its Directors, that accused Nos.2 to 6 are the Directors of the company, accused Nos.7 and 8 are the Manufacturing Chemist of the Company, accused No.9 is Senor Director, Quality Assurance of the Company, accused Nos.10 to 12 are Quality Control Chemist of the Company.
9. I have also perused the other paragraphs in the said private complaint. Except the averments as found in para No.4, there are no specific averments in the complaint that as on the date of manufacturing of the said drugs, the petitioners-accused Nos.2 to 4 were responsible for the day today affairs of the said Company. Further, there is no averment that accused Nos.2 to 4 were participated in the said business of the 10 Company and hence they are responsible for the said act of the Company in producing such drugs. When there are no such averments made in the complaint, even if the trial is proceeded with and in the trial also, this will be the aspect which has to be considered. Therefore, it will be a waste of valuable time and energy of the Court in case, trial is permitted to be proceeded with as against accused Nos.2 to 4.
10. Apart from that, it is the specific contention of the petitioners-accused Nos.2 to 4 that as on the date of the alleged act said to have been committed by accused No.1-Company, they were not at all the Directors of the said Company and they became the Directors of the said Company subsequently on 5.12.2013 and the said fact is supported by documents. When that is so, the question of fastening liability on the petitioners-accused Nos.2 to 4 does not arise.
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11. I have perused the decisions relied upon by the learned Senior Advocate in support of his arguments along with the list of authorities so also I have perused the order of this Court dated 7.8.2017 passed in Crl.P. No.5392/2017, wherein this Court has held that Section 34 of the Drugs and Cosmetics Act, 1940 is similar to Section 141 of Negotiable Instruments Act.
12. Considering all these legal aspects also, I am of the opinion that the petitioners-accused Nos.2 to 4 have made out that the case initiated against them is abuse of process of Court and with malafide intention. Hence, petition is allowed. The criminal proceedings initiated against the petitioners-accused Nos.2 to 4 are hereby quashed.
Sd/-
JUDGE Cs/-
Ct:MHP