IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.40 of 2000. CRIMINAL REVISION APPLICATION NO.40 of 2000. CRIMINAL REVISION APPLICATION NO.40 of 2000. Tanaji Dharmaji Patil ..Applicant versus The State of Maharashtra & Another ..Respondents Mrs. Revati Mohite Dere for the Applicant Ms.Alpa Jhaveri for the State CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 5th June, 2008. DATED : 5th June, 2008. DATED : 5th June, 2008. JUDGMENT. 1. The present applicant faced trial in the Court of the learned Chief Judicial Magistrate, Pune, hereinafter referred to as the learned trial Judge, in Regular Criminal Case No.17 of 1992 under Section 18(c) r/w. Section 27 of the Drugs & Cosmetics Act, 1940 (hereinafter referred to as the said Act) along with four other persons who worked in one organization by name M/s.Hexagon Laboratories. The learned trial Judge conducted the trial and convicted the present applicant under Section 18(c) r/w. Section 27 of the said Act and sentenced the present applicant to suffer r.i. for three months and to pay a fine of Rs.5000/- and sentence in default of payment of fine was provided. This was done by Order dated 20.9.1984. The applicant and three other persons preferred -2- Criminal Appeal No.295 of 1991 in Court of 11th Addl. District Judge, Pune (hereinafter referred to as the learned Addl. Sessions Judge) against the Judgement dated 20.9.1994. The learned Addl. Sessions Judge confirmed the Order of conviction so far as the present applicant is concerned and sentenced the applicant to simple imprisonment till rising of the Court and maintained the order as regards the payment of fine of Rs.5000/- and the order in regarding sentence in default of payment of fine. This was done by order dated 1.10.1999. Being aggrieved by the Order of conviction and sentence as aforesaid passed by the learned Addl. Sessions Judge, the applicant has filed this revision application. 2. The prosecution case in gist is as under: . A Company by name M/s. Hexagone Laboratories which was accused No.6 before the learned trial judge (hereinafter referred to as the said Company has involved itself in manufacturing of certain drugs at Khardi Pune and it is admitted position that the said company had no license to manufacture drugs in accordance with the provisions -3- of the said Act. The company commenced manufacturing of drugs at Khardi and in the said factory at Khardi the present applicant was appointed as quality control officer. It is the case of the prosecution that the present applicant was incharge of Quality Control section of the said company. On 2.8.1991 a raid was conducted by the Officers who were implementing the provisions of the said Act. On satisfaction of the facts that the said company did not possess appropriate license under the said Act to manufacture drugs, complaint came to be filed and prosecution was launched against the present applicant against the said company , its partners and one Mr. Dilip who was incharge of manufacturing of the products. The case ended in conviction as indicated aforesaid after the evidence was recorded. The appeal ended in confirmation of Order of conviction as mentioned earlier. 3. I have heard learned Advocate Mrs. Mohite Dere for the applicant and Ms. Jhaveri for the State. It is required to be mentioned that the applicant was working as a Quality Control Officer of the said company and the applicant was concerned -4- with the said company and the activities of the company of manufacturing of drugs in the limited capacity as employee and that too of Quality Control Department. It is with this factual position the revision was considered. 4. Learned Advocate Mrs. Mohite Dere for the applicant conceded that the provisions of Section 18(c) r/w. Section 27 clearly indicates that if the company has to manufacture drugs, a licence is required to be obtained. The only point which was pressed so far as the present applicant is concerned was with regard to the status of the present applicant in the said company and whether the said applicant could fall within the ambit of Section 34 so as to fix the responsibility of the applicant as a person who could be said to be incharge of and was responsible to the company for the conduct of the business of the company. The learned advocate for the applicant had submitted that provisions of Section 34 of the said Act provided for special provisions to make certain persons liable if the offence is committed by the company. She had drawn my attention to Section 34 (1) which is as follows "Where the offence under -5- this Act has been committed by the company every person who at the time of the offence was committed was incharge of and was responsible to the company for the conduct of the business of the company as well as the company was deemed to be guilty of the offence and was liable to be proceeded against and punished accordingly." The learned advocate for the applicant conceded that in the present case it is the case of the prosecution that the offence is committed by the said company and therefore it is necessary to check up whether the present applicant falls within the ambit of Section 34 of the said Act as the person who is concerned with the affairs of the company ( with reference to section quoted above). Learned advocate for the applicant submitted that if the applicant was working with the said company as Quality Control Officer he can hardly be called as a person who was incharge for and responsible for the conduct of the business of the company in the sense in which it has been stated in Section 34. According to her Section 34 was enacted by the legislation to fix responsibility on certain persons who are concerned with the organisation namely the company who has carried out the activity in the name of the said -6- company. According to her the present applicant working as Quality Control Officer was not directly concerned with the affairs of the company as is understood under Section 34 and his job was limited to the question whether drugs which are manufactured by the said company conform to the standard prescribed by the various authorities. She submitted that the applicant was humble employee and when he entered the services of the said company he could not have questioned his master i.e. the partners of the company whether the possess an appropriate licence to manufacture the drugs as he was not concerned with the affairs of the company in the sense as understood under Section 34. The learned advocate for the applicant contended that this aspect was not considered by the learned trial Judge as well as by the learned Addl. Sessions Judge and both the courts took it for granted that the status of the applicant and the nature of the duties performed by the applicant fall within the ambit of Section 34. She pointed out that the job of the present applicant would start after the goods are manufactured and sample of that is sent to him for conducting the chemical test for ascertaining the quality of the goods. -7- She submitted that since Section 34 is a section which brings within its ambit person who can be termed as incharge. She further submitted that the finding recorded by the two courts is not proper and the courts below ought to have considered the matter in its proper perspective and that the applicant ought to have been acquitted by observing that the case of the applicant does not fall within the ambit of Section 34. She pressed for grant of revision. 5. Learned Advocate Ms. Jhaveri appearing on behalf of the State contended that if one peruses the provisions of Section 18(c), 27 and Section 34 the presence of the applicant at the office of the company and his activity as Quality Control Officer was well within the meaning of Section 34 and the learned trial Judge and the learned Addl. Sessions Judge had rightly observed that the application was covered by Section 34 of the said Act. She submitted that the applicant was incharge of the company and the goods manufactured by the company were undoubtedly without licence and could not be passed out as fit for sale and therefore the case of the applicant falls within the provisions of -8- Section 34. She had pressed for dismissal of the revision. 6. After considering the rival submissions I am inclined to allow the revision for the reasons to follow. 7. It is admitted that the applicant was Quality Control Officer. He was the employee of the said company and therefore he was required to carryout the orders as his master, namely conducting of Chemical tests and determine the quality of the goods which are manufactured. He can hardly be called as a person who can be termed as "a person incharge of and was responsible to the company for the conduct of the business of the company as well as the Company" The argument advanced by the learned advocate for the applicant that the job of the applicant starts after the drugs are manufactured is of vital importance. It is true that if the applicant certifies that the goods are of good quality then only they would be sold in the market, but the job of the applicant was with reference to the quality control and it is rightly argued by the learned advocate for -9- applicant that the applicant can hardly be called as a person who was incharge of the affairs of the company. The argument advanced by the learned advocate for the applicant is right when she says that this aspect of the matter was not considered by the learned trial Judge as well as the learned Addl. Sessions Judge. Reading of the judgment delivered by the learned trial Judge as well as the Addl. Sessions Judge would go to show that they treated the present applicant as a person incharge of the quality control and as a person who is responsible as indicated under Section 34. Except treating his as one covered under Section 34 specific reasons were not given as to how the courts below were of the view that applicant was failing within the parameter laid down by Section 34. In my view, the learned trial judge as well as the learned Addl. Sessions Judge ought to have decided the role which was being played by the applicant in the activity of the company as a whole and if that could have been done, I am sure the two courts could have come to a different conclusion than what they have arrived at. In my view the submissions of the learned advocate for the applicant are correct and proper and are required -10- to be accepted. It is to be noted that a person who is being appointed as an employee in an organisation would not dare to ask his master as to whether his master possesses an appropriate licence to manufacture the products and check up the licence and then only accept the employment. The person who is working as an employee and in particular Quality Control Department will not concern himself ith the fact of obtaining the licence by his employer. Hence, this is a fit case where this Court should interfere and set aside the Order of conviction and sentence imposed upon the applicant and grant this revision. Hence the Order. ORDER . Rule made absolute. . The Judgment and Order dated 1.10.1999 passed by the 4th Addl. Sessions Judge, Pune in Criminal Appeal No.295 of 1991 confirming the judgment and Order dated 20.9.1994 delivered by the learned Chief Judicial Magistrate, Pune in Regular Criminal Case No.17 of 1992 is set aside. The conviction and sentence imposed upon the applicant -11- under Section 18(c) r/w. Section 27 of the Drugs and Cosmetics Act, 1940 is set aside. . Bail bond of the applicant are cancelled. . Fine, if deposited by the applicant be returned to him after the appeal period is over. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) -12- -13- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION N0.40 OF 2000. CRIMINAL REVISION APPLICATION N0.40 OF 2000. CRIMINAL REVISION APPLICATION N0.40 OF 2000. Date of Decision : 5th June, 2008 For Approval and signature The Honourable Shri Justice R.Y. GANOO J. 1. Whether Reporters of Local Papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? -14- 3. Whether Their Lordships wish to see the fair copy of the Judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950, or any other made thereunder? 5. Whether it is to be circulated to the Civil Judges? 6. Whether the case involves as important question of law and whether a copy of the judgment should be sent to Nagpur, Aurangabad & Goa Offices?