High Court Kerala High Court

Sri.Himanshu Baid vs State Of Kerala on 17 March, 2010

Kerala High Court
Sri.Himanshu Baid vs State Of Kerala on 17 March, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 329 of 2010()


1. SRI.HIMANSHU BAID,
                      ...  Petitioner
2. SRI.RISHI BAID,
3. SRI.D.R.METHA, CHAIRMAN,
4. SRI.AJAY SHARMA,
5. M/S. POLY MEDICURE LIMITED,

                        Vs



1. STATE OF KERALA,
                       ...       Respondent

                For Petitioner  :SRI.M.ASOKAN

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :17/03/2010

 O R D E R
                      M.SASIDHARAN NAMBIAR, J.
                           ---------------------------
                        Crl.M.C. No. 329 OF 2010
                            --------------------------
                 Dated this the 17th day of March, 2010

                                 O R D E R

Petitioners are accused 2 to 6 in C.C. No.412/2009 on the

file of Judicial First Class Magistrate-I, Kozhikode taken cognizance

for the offences under Section 27(b)(ii) and 27(d) of the Drugs and

Cosmetics Act, 1940 on Annexure-I complaint filed by the Drugs

Inspector for Kozhikode. The first petitioner is implicated as the

second accused being the Managing Director, second petitioner was

implicated as third accused being the Executive Director, third

petitioner was implicated as fourth accused being the Chairman and

fourth petitioner was implicated as the fifth accused being the

Assistant General Manager of fifth petitioner the sixth accused

company M/s.Poly Medicure Limited. Petition is filed under Section

482 of Code of Criminal Procedure to quash the cognizance taken

as against the petitioners.

2 Learned counsel appearing for the petitioners and

learned Public Prosecutor were heard.

3. Learned counsel appearing for the petitioners submitted

that petitioners are confining the relief of quashing the cognizance

Crl.M.C.No.329/2010
2

taken against petitioners 1 to 3 alone who are respectively accused 2

to 4. The learned counsel argued that in the absence of an

allegation in Annexure-I complaint that petitioners 1 to 3 were either

in charge and was responsible to company for the conduct of the

business of the company, they cannot be vicarious liable or

prosecuted and therefore the cognizance taken against them is to be

quashed. Learned counsel relying on the decision of the Apex Court

in State of Haryana v. Brij Lal Mittal (1998 (5) SCC 343) argued

that for the sole reason that petitioners 1 to 3 are either the

Managing Director, Executive Director or Chairman of the Company,

they cannot be prosecuted as there is no case for the prosecution

that they were either in charge and was responsible to the company

for the conduct of the business of the company at the time of

commission of the offence and therefore, the case as against them is

to be quashed.

4. Learned Public Prosecutor submitted that though there is

no specific allegation in Annexure-I complaint that petitioners 1 to 3

were either in charge and was responsible to company for the

conduct of the business of the company, the case as against the first

Crl.M.C.No.329/2010
3

petitioner stands on a different footing as he is the Managing Director

and in such circumstances, even if the cognizance taken against

petitioners 2 and 3 is bad, the cognizance taken against the first

petitioner cannot be quashed.

5. Section 34 of the Drugs and Cosmetics Act, 1940

provides the offences by companies. Under sub section 1, where an

offence under the Act has been committed by a Company every

person who at the time the offence was committed was in charge and

was responsible to 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. Proviso further provides that nothing contained in the

sub section, shall render any such person liable if he proves that the

offence was committed without his knowledge or that he exercised

due diligence to prevent the commission of such offence. Sub

section 2 provides that notwithstanding anything contained in sub

section 1, where an offence under the Act has been committed by a

Company and it is proved that offence has been committed with the

consent or connivance or is attributable to any neglect on the part of

Crl.M.C.No.329/2010
4

any Director, Manager, Secretary or other officer of the company,

such Director, Manager, Secretary or other officer is also deemed to

be guilty of the offence and shall be liable to be proceeded against

and punished accordingly. Therefore, unless there is an allegation in

the complaint that the Directors of the company, who are implicated

in the case, were in charge and was responsible to company for the

conduct of the business of the company, they cannot be prosecuted,

unless there is an allegation that even though they were not in

charge of and were not responsible to company for the conduct of

the business of the company, the offence was committed with either

their consent or connivance or is attributable to any neglect on their

part.

6. The honourable Supreme Court in State of Haryana v.

Brij Lal Mittal (supra) considering the provision held:

“It is thus seen that the vicarious liability of a person for
being prosecuted for an offence committed under the Act
by a company arises if at the material time he was in
charge of and was also responsible to the company for
the conduct of its business. Simply because a person is
a director of the company it does not necessarily mean
that he fulfills both the above requirements so as to
make him liable. Conversely, without being a director a
person can be in charge of and responsible to the
company for the conduct of its business. From the

Crl.M.C.No.329/2010
5

complaint in question we, however, find that except a
bald statement that the respondents were directors of
the manufacturers, there is no other allegation to
indicate, even prima facie, that they were in charge of
the company and also responsible to the company for
the conduct of its business.”

The decision applies for the facts of this case.

7. But that decision cannot be made applicable to the case

of the Managing Director. The question whether he was in charge

and was responsible to company for the conduct of the business of

the company can only be decided at the time of trial based on

evidence. On the basis of absence of pleading alone, the case as

against the Managing Director cannot be quashed exercising the

powers under Section 482 of Code of Criminal Procedure.

8. But the question is different as far as the petitioners 2

and 3 are concerned. The second petitioner, who is the third

accused, was implicated only in his capacity as the Executive

Director and that too without an allegation that he was either in

charge and was responsible to company for the conduct of the

business of the company or that the offence was committed with

either his consent or connivance or is attributable to any neglect on

his part. Therefore second petitioner cannot be prosecuted

Crl.M.C.No.329/2010
6

vicariously for the offence committed by the company. Hence the

cognizance taken is bad. Same is the case with the third petitioner,

who is the fourth accused Chairman of the Company. In the absence

of an allegation in the complaint that he was either in charge and

was responsible to company for the conduct of the business of the

company or that offence was committed with either his consent or

connivance or is attributable to any neglect on his part, he cannot be

prosecuted vicariously for the offence committed by the company.

Hence the cognizance taken as against the third petitioner is also

bad.

Petition is allowed in part. The cognizance taken by the

Judicial First Class Magistrate-I, Kozhikode in C.C. No.412/2009

against accused 3 and 4 is quashed. Other petitioners are at liberty

to raise the contentions before the learned Magistrate at the time of

trial.

M.SASIDHARAN NAMBIAR,
(JUDGE )

vps

Crl.M.C.No.329/2010
7

Crl.M.C.No.329/2010
8