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ix. On 20.02.2009, enquiries were made with the Delhi depot of M/s Cipla Ltd. and it was revealed that the Drug was supplied to them from the Bhiwandi depot of the said company vide invoices no. 008129 and 008980 dated 25.02.2008 and 29.03.2008.

x. On 18.11.2009 and 19.11.2009, enquiries made with M/s Mistair Health and Hygiene Pvt. Ltd. revealed that the Drug was manufactured by them on the basis of loan license granted to M/s Cipla Ltd. for sale and distribution. It was confirmed that the aforesaid batch of the Drug was supplied to M/s Cipla Ltd. at their Bhiwandi depot on 20.01.2008 and 29.01.2008. The said position was also not disputed by Mr. Santosh S. Naik, who was the authorised person of M/s Cipla Ltd. at M/s Mistair Health and Hygiene Pvt. Ltd.

Submissions on behalf of the State Responsibility of M/s Cipla Ltd. and the Petitioners

9. Learned APP for the State submitted that M/s Cipla Ltd. is a ‗manufacturer' in terms of Section 3(b) of the Act. Attention of this Court was drawn to a letter dated 20.02.2009 addressed by M/s Cipla Ltd. to the Drugs Inspector admitting that batch No. CM 7451 of the Drug was manufactured at their Kolhapur plant. Learned APP of the State drew the attention of this Court to a letter dated 23.06.2010 addressed by M/s Cipla Ltd. stating that a Power of Attorney was executed by petitioner no. 1 in favour of Mr. Talat Fakhri making him responsible for conduct of the day to day business of M/s Cipla Ltd. It was submitted that Section 34 of the Act provides that in case of an offence committed by a company, every person responsible for the conduct of the business of the company at the time of the commission of the offence shall be liable to be proceeded against and punished accordingly. It was submitted that the import of Section 34 of the Act includes Directors of the company as well, which in this case are the petitioners. Therefore, it was submitted that the Magistrate was required to only formulate a prima facie view in relation to the commission of the offence and has not erred in summoning the petitioners.

Loan Licence

12. Learned APP for the State submitted that the loan licence, on the basis of which M/s Mistair Health and Hygiene Pvt. Ltd. was manufacturing the drug, was granted to M/s Cipla Ltd. It was urged that Rule 69A of the 1945 Rules provides that a loan licence may be issued by the concerned Licensing Authority to an applicant who intends to avail the manufacturing facilities owned by a licensee in term of form 25 of the 1945 Rules. 12.1. It was submitted that in the present case, M/s Cipla Ltd. has used the manufacturing facilities of M/s Mistair Health and Hygiene Pvt. Ltd. to manufacture, sell and distribute the Drug. The loan license was granted to M/s Cipla Ltd. after complying with the mandatory requirements of the 1945 Rules. As per the said rules, the loan licensee, i.e., M/s Cipla Ltd. is the actual manufacturer of the Drug and its liability is at par with M/s Mistair Health and Hygiene Pvt. Ltd.

vii. 20.02.2009 - After relevant enquiries from the distributor, it was revealed that the drug was supplied to them by M/s Cipla Ltd. from its depot at Mandoli Village, Delhi and investigation was conducted at the Delhi depot of M/s Cipla Ltd.

viii. 18.11.2009 to 19.11.2009 - Enquiries made with M/s Mistair Health and Hygiene Pvt. Ltd. revealed that the Drug was manufactured by them on loan license from M/s Cipla Ltd.