THE HON’BLE SRI JUSTICE R. KANTHA RAO Crl.P No.2346 of 2008 Date: 24.6.2010 Between:
M/s.Super Surgico Appliance Pvt Ltd., Rep by its Managing Director, Hyderabad and others.
…………Petitioners.
And The State Bank of Andhra Pradesh, Rep by its Public Prosecutor, High Court Buildings, Hyderabad.
THE HON’BLE SRI JUSTICE R. KANTHA RAO Crl.P No.2346 of 2008 ORDER:
This Criminal Petition is filed under Section 482 Cr.P.C to quash the proceedings in C.C.N.640 of 2007 on the file of I Additional Judicial First Class Magistrate, Khammam.
The brief facts of the case are as follows:
On 23-10-2004, Sri P.Venkateswarlu (LW-1), the then Drugs Inspector lifted the sample Infusion Sets, B.No.1490, D/M.9/04, D/E. 3 years from Steri. Dt. Mfg. By M/s.Supersurgico Appliances Pvt. Ltd., D.No.19-2-246/1, Royal Lab Compound, Chandulal Bardari, Hyderabad, and sent to Drugs Control Laboratory, Hyderabad for analysis and report vide Form-18, dated 25-10-2004. The analyst report No.1008/DCL/2005, dated 24-3-2005 of the Government Analyst stated that the sample was declared as not of standard quality as it does not meet the I.S.I (I.S.12655) specification infusion set for closure piercing device, internal diameter and drip tube. Subsequently, the Drugs Inspector filed the complaint three years after the lifting of the samples for the purpose of analysis.
I have heard the learned counsel appearing for the petitioners and the learned Public Prosecutor representing the respondent-State.
The contention of the learned counsel appearing for the petitioners is that due to delay in filing the complaint, the petitioners-accused were deprived of their right under Section 25 (4) of the Drugs and Cosmetics Act to send the sample for analysis to the Central Drugs Laboratory. In the complaint petition, the petitioners-accused 2 to 4 were mentioned as Directors but it is not specified therein that they are incharge and responsible for the conduct of its business.
I n M/s.Bombay Pharma Products and others v.
[1]
The State of M.P., and M/s.Vilco Laboratories etc., v.
[2]
The State of Gujarat and another etc., relied upon by the learned counsel appearing for the petitioners, it is held that when the accused is deprived of his right under Section 25 (4) of the Act due to delay in launching the prosecution, the report of the Government Analyst cannot be said to be conclusive.
Similarly, in State of Haryana v. Brij Lal Mittal &
[3]
Ors. , the Hon’ble Supreme Court held that when the accused were being prosecuted as directors of the manufacturers with the aid of Section 34 (1) of the Act, 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 incharge 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.
There is an amount of force in the contention urged by the learned counsel appearing for the petitioners. Even if the prosecution is continued, in the view of the above mentioned infirmity in the prosecution, there is no possibility of the petitioners-accused being convicted for the offences alleged under the Act. Continuing the prosecution under these circumstances, is nothing but an abuse of process of Court. Consequently, the entire proceedings in C.C.No.640 of 2007 on the file of the Judicial Magistrate of First Class, Khammam are quashed.
Accordingly, the Criminal Petition is allowed.
JUSTICE R. KANTHA RAO
Date: 24.06.2010 mrb
[1] 1991 CRI.L.J. 707
[2] 1975 CRI.L.J. 965
[3] 1998 (2) Crimes 295 (SC)