HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No. 4186 of 2009 O R D E R: The petitioners 1 to 5/A1 to A5 are accused of offence punishable under Section 27(d) of the Drugs and Cosmetics Act, 1940 ( in short, the Act) for violation of Section 18(a)(i) of the Act on the ground that Ethambutol Hydrochloride Tablets I.P.(800 mg.) batch No.4001, manufactured and distributed by A-1’s firm represented by its partners A2 to A5, were not of standard quality. 2. The only point that is urged by the petitioners’ counsel in this petition is based on Section 34 of the Act. Section 34 of the Act reads as follows: “34. Offences by companies – (1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed, was in charge of, and was responsible to the 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: PROVIDED THAT nothing contained in this sub-section shall render any such person liable to any punishment provided in this act if he proves that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation – For the purposes of this section – a) “company” means a body corporate, and includes a firm or other association of individuals: and b) “director” in relation to a firm means a partner in the firm.” 3. Thus, as per Explanation to Section 34 of the Act, a firm is included in the definition of a company and a partner within the meaning of a Director for the purpose of the said section. Section 34 of the Act contemplates prosecution of every person who at the time the offence was committed, was in-charge of and was responsible to the company for the conduct of the business of the company as well as the company. 4. It is contended by the petitioners’ counsel that the complainant namely, Drugs Inspector, Visakhapatnam did not make any allegations in the complaint as contemplated under Section 34 of the Act and in as much as there is no allegation in the complaint to the effect that any of A2 to A5 was in-charge of and was responsible to A-1 firm for conducting of its business and that in the absence of the said allegations contemplated under Section 34 of the Act, prosecution of A2 to A5, who are petitioners 2 to 5 herein, is contrary to law. 5. A reading of the complaint reveals that the complainant issued notice under Section 18(b) of the Act dated 01-03-2006 to A1 firm requesting to produce records of manufacturing, analysis, distribution and constitution of the firm particulars along with drug licence and that a reply was received from A-1-firm represented by Sanjay Zatakia (A2), partner of A-1 firm on 25.03.2006 furnishing attested copies of manufacturing records, analytical records, raw material purchase bills, manufacturing licences etc., From this portion of the complaint, it is evident that it was A-2, who was corresponding with the complainant on behalf of A-1 firm. Except the allegation that A2 to A5 are partners of A-1 firm, there is no allegation to show that any of them was responsible for conducting of its business. Having regard to Section 34 of the Act and having regard to lack of details and averments as required under Section 34 of the Act, this court is of the opinion that prosecution of A3 to A5 by the Drugs Inspector is not in accordance with law. 6. The petitioners’ counsel also placed reliance on N.Dandapani Vs. State of A.P.[1] of this court in support of his contention and it is on the same lines as decided by this court supra. 7. In the result, the criminal petition is partly allowed quashing the proceedings in CC No. 1031 of 2008 on the file of the Chief Metropolitan Magistrate, Visakhapatnam, in so far as the petitioners 3 to 5/A3 to A5 are concerned; and the petition is partly dismissed in so far as the petitioners 1 and 2/A1 and A2 are concerned. ____________________________ SAMUDRALA GOVINDARAJULU, J 08-10-2010 Mjl/* [1] 2005 ALT(Cri) -1-465