Case Note & Summary
The Bombay High Court dealt with an application under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) seeking quashing of Criminal Case No.357/2011 pending before the Chief Judicial Magistrate, Thane. The case was initiated by respondent No.2, a Drugs Inspector, against the applicants and another accused for alleged manufacture of substandard drugs. Applicant No.5 is a registered firm, M/s Swiss Garnier Life Sciences, which manufactured 'Bioclin, Prebiotic & Probiotics Sachets 1 gram'. The complaint alleged that the total viable count of anaerobic bacteria in the sample was less than the permissible limits, rendering the drug not of standard quality under Section 17B of the Drugs and Cosmetics Act, 1940. The applicants were arrayed as accused Nos.1 to 3, 5 and 6. Applicant No.1 was the Managing Partner, applicant No.2 was a sleeping/dormant partner, applicant Nos.3 and 4 were employees (Manufacturing Chemist and Vice-President Quality Assurance respectively), and applicant No.5 was the firm. The legal issue was whether the criminal proceedings could be sustained against the applicants in the absence of specific allegations regarding their individual roles in the manufacture or sale of the drug. The court noted that the complaint did not contain any specific averments against applicant Nos.2, 3, and 4 showing that they were in charge of or responsible for the conduct of the business of the firm at the relevant time. Relying on the principle that vicarious liability cannot be imposed in criminal law without specific statutory provision and specific allegations, the court held that Section 34 of the Drugs and Cosmetics Act requires that the accused was in charge of and responsible for the conduct of the business. Mere designation as partner or employee is insufficient. The court quashed the proceedings against applicant Nos.2, 3, and 4, but allowed the proceedings to continue against applicant No.1 (Managing Partner) and applicant No.5 (the firm). The court also directed that the trial against the remaining accused shall proceed expeditiously.
Headnote
A) Criminal Law - Quashing of Proceedings - Section 482 CrPC - Vicarious Liability - The court examined whether partners and employees of a firm can be prosecuted for manufacture of substandard drugs without specific allegations of their involvement - Held that vicarious liability cannot be imposed in criminal law without specific averments of the role played by each accused - Proceedings quashed against applicants who were not directly involved in manufacture or sale (Paras 1-10). B) Drugs and Cosmetics Act, 1940 - Offences by Companies - Section 34 - Liability of Partners and Employees - The court interpreted Section 34 of the Act, which requires that the accused was in charge of and responsible for the conduct of the business - Held that mere designation as partner or employee is insufficient; there must be specific allegations that the accused was responsible for the manufacture or sale of the drug in question (Paras 5-10). C) Drugs and Cosmetics Act, 1940 - Substandard Drugs - Sections 18(a)(i), 27(d), 17B - Manufacture of Drugs Not of Standard Quality - The complaint alleged that the drug 'Bioclin, Prebiotic & Probiotics Sachets' had less viable count of anaerobic bacteria - Held that the firm and its managing partner may be liable, but other partners and employees without specific role cannot be prosecuted (Paras 2-10).
Issue of Consideration
Whether criminal proceedings under the Drugs and Cosmetics Act, 1940 can be sustained against partners and employees of a firm in the absence of specific allegations regarding their role in the manufacture or sale of the alleged substandard drug.
Final Decision
The court allowed the application in part. Criminal proceedings against applicant Nos.2, 3, and 4 (Mrs. T. Rethinavalli, Mrs. Neetea Sanjay Sharma, and PL. Ramani) were quashed. The proceedings against applicant No.1 (M.S. Theivendran) and applicant No.5 (M/s Swiss Garnier Life Sciences) were allowed to continue. The trial court was directed to proceed expeditiously against the remaining accused.
Law Points
- Vicarious liability under criminal law
- Section 482 CrPC quashing
- Drugs and Cosmetics Act 1940 Sections 18(a)(i)
- 27(d)
- 17B
- 34
- strict liability
- role of partners and employees
