Bombay High Court
Hitesh P. Patel And Others vs The State Of Maharashtra on 25 February, 2026
2026:BHC-AUG:8245
CrWP876-19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 876 OF 2019
1. Hitesh P. Patel
Age 46 years, Occu: Business,
Partner of M/s Harsh Laboratories,
A-201, Satkar Coop. Housing Society,
First Floor, Behind Udgam School,
Thaltej, Ahmedabad 380054
2. Ashokbhai C. Patel, ... Petitioners
Age : 48 years, Occu: Business
Partner of M/s Harsh Laboratories,
A-201, Satkar Coop. Housing Society,
First Floor, Behind Udgam School,
Thaltej, Ahmedabad 380054
3. Bharatbhai Vaghasia
Age : 47 years, Occu: Business
Partner of M/s Harsh Laboratories,
A-201, Satkar Coop. Housing Society,
First Floor, Behind Udgam School,
Thaltej, Ahmedabad 380054
4. Kishorbhai Bhayani
Age : 47 years, Occu: Business
Partner of M/s Harsh Laboratories,
A-201, Satkar Coop. Housing Society,
First Floor, Behind Udgam School,
Thaltej, Ahmedabad 380054
VERSUS
1. The State of Maharashtra, ... Respondent
Through and at the instance of
M.K. Rajpal, Drugs Inspector,
Office of Assistant Commissioner,
Food & Drug Administration (M.S.)
1st Floor, Pratishyam Building,
Station Road, Dhule
Mr. Amit S. Savle, Advocate for the Petitioner,
Mr. V. M. Chate, APP for Respondent-State
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CORAM : Y. G. KHOBRAGADE, J.
RESERVED ON : 13.02.2026
PRONOUNCED ON : 25.02.2026
JUDGMENT:
–
1. Rule. Rule made returnable forthwith and with consent of the
parties, the petition is heard finally at the stage of admission.
2. By the present petition under Articles 226 and 227 of the
Constitution of India, the petitioners take exception to the judgment and
order dated 18.09.2017 passed by the learned Additional Sessions Judge,
Shahada, in Criminal Revision Application No. 52 of 2015 and thereby
dismissed the revision application filed by the petitioners and affirmed the
order dated 21.11.2015 passed by the learned Judicial Magistrate First
Class, Shahada, District Nandurbar in Regular Criminal Case No. 188 of
2001 in respect of framing charges against the petitioners.
3. Heard Mr. Amit S. Savale, learned counsel for the petitioners
and Mr. V. M. Chate, learned APP for the State at length. Having heard of
both the sides, I have gone through the record.
4. The Petitioners are original accused Nos. 1 to 4 and the
respondent is original complainant in RCC No. 188/2001. The facts are
giving rise to the present petition are that, the respondent-prosecution,
through Mr. M. K. Rajput, Drugs Inspector, Office of the Assistant
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Commissioner, Food & Drugs Administration, Dhule filed a complaint
against the petitioners and others for contravention of provisions of
Section 18(a)(i) read with Section 16 of the Drugs and Cosmetics Act,
1940 punishable under section 27(d) read with section 24 of the said Act
in respect of manufacturing of “Dicilin Capsules” below the standard
quality.
5. The present petitioners/original accused nos. 1 to 4 are the
partners of Accused No. 6 M/s Harsh Laboratories, the Drug Distribution
Firm.
6. It is matter of record that, the present petitioners/ori. Accused
nos. 1 to 4 and Accused No. 6 Distribution Firm had filed Cri. Rev. Appln.
52 of 2015 challenging order of framing charges passed by the learned
Judicial Magistrate on 25.11.2015 in RCC No. 188 of 2001. However, on
18th September, the learned Revisional Court passed the impugned
Judgment and order in Cri. Rev. Appln. 52 of 2015 and dismissed the
revision of the Petitioners.
7. It is a matter of record that, the Respondent/ prosecution filed
RCC No. 188 of 2001 before the Judicial Magistrate First Class, Shahada
alleging that, on 26.04.2000, the respondent/complainant visited the
premises of M/s The General Medical Stores, Purshottam Market, Shop
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No. 85, Dondiacha Road, Shahada and drawn sample of “Dicilin
Capsules” Batch No. 91001, Manufacturing date October, 1999 and Expiry
date September, 2001. After compliance of necessary formalities, samples
of “Dicilin Capsules” got tested from the State Drug Control Laboratory.
As per the analytical report in Form No. 13 issued by the State Laboratory
dated 16.04.2021 contents of Claxacilin in the sample found less than
9.9% of the labelled amount. Therefore, on 19.04.2001, the complainant
issued notice under section 18-A and 18-B of the Drugs and Cosmetics Act
to M/s General Medical Store and called certain information. Accordingly,
the authorised person of M/s General Medical Store disclosed the name
of Accused No. 6 M/s Harsh Laboratories, who manufactured Drug “Dicilin
Capsules”. Accordingly, the Respondent/ complainant sent one part of
analytical report of the drug on 25.04.2000 to the Accused No. 6 in
compliance of Section 23(4)(iii) and obtained acknowledgment. The
complainant again issued notice under section 18-B of the Drugs and
Cosmetics Act to Respondent No.6 on 13.06.2001 and called upon to
furnish necessary information as well as certified copies of the
manufacturing licence and other details in the required form.
8. In compliance of said information, the Accused No.6 Firm
through it’s Partner Shri Hitesh P. Patel, the petitioner No. 1 furnished
information and produced certified copies of manufacturing licence,
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product approval, list of approved technical staff, manufacturing and
analysis record, sale details, delivery memo, invoice, credit voucher,
licence in form 20B and 21B, etc.
9. Thereafter, on 20.06.2001, the Respondent/Complainant
issued notice u/s 18-B of the Act to the Accused No.11 M/s Depila
Pharmaceutical Pvt. Ltd., the Drug Manufacturing Company and directed
to furnish required information regarding manufacturing of the said drug,
testing and distribution of the Drug, however, no such information was
supplied by accused no.11. Therefore, the Respondent/Complainant
issued reminder on 25.07.2001 by Registered Post A.D. and called upon
the accused no.11 to furnish required information but the accused No.11
refused to accept said notice. Then the Respondent/complainant obtained
certified copies of the Constitution of the Firm, Memorandum of
Association and Articles of Association of Accused No. 11 M/s Depila
Pharmaceuticals Pvt. Ltd., Renewal application in form No. 24 and 27 for
a period of 1999-2000 and 2001, 2002, list of technical persons submitted
by the firm and licence in form No. 25 and 28 etc., from the office of
the Commissioner, Food & Drug Control Administration, Gandhinagar,
Gujarat State.
10. According to the Respondent/Complainant, as per documents
furnished by the office of the Commissioner, Food & Drug Control
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Administration, Gujarat State, the Accused No.7 Shri Laljibhai A. Patel and
Accused No. 8 Shri Laljibhai N. Borad are the Directors of the Accused
No. 11 firm- M/s Depila Pharmaceutical Pvt. Ltd., who manufactured
“Dicilin Capsules”, Batch No. 91001, Mfg. date Oct. 1999, Exp. Date Sept.
2001 and supplied to Accused No.6 M/s Harsh Laboratories and sold
through the General Medical Stores, Dondiacha, from which establishment
drug in question has been collected and got tested through the State Drug
Control Laboratory. However, as per the laboratory’s Report, said drug
found below the standard quality and contents of Claxacilin found 9.9%
less than the labelled amount. Therefore, the accused have committed
offence under Section 18(a)(i) read with Section 16 of the Drugs and
Cosmetics Act, 1940, punishable under section 27(d) read with section 24
of the said Drugs and Cosmetics Act.
11. Though the learned trial Court tried to serve with summons
by adopting all the mode to original accused Nos. 5 Shri Ronakkumar M.
Bhrahmbhatt, 7 Shri Laljibhai A. Patil, 8 Shri Laljibhai N. Borad, 9 Shri
Yogesh Parikh, 10 Shri Vinodbhai Patel, 11 M/s Depila Pharmaceutical Pvt.
Ltd., but they are not found. The Petitioners/Accused Nos. 1 to 4 and 6
appeared in the matter, hence, the complaint was proceeded u/s 299 of
Cri. P. C. as against the absconding accused.
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12. On 03.03.2015, the learned JMFC, Shahada passed an order
below Exh.1 and Exh.56 in RCC No. 188 of 2001 and called upon the
prosecution to lead evidence before charge. Accordingly, the
Respondent/complainant led evidence before charge and it was recorded
in presence of the Petitioners/Accused 1 to 4 under section 299 of the
Criminal Procedure Code. On 21.11.2015, the learned JMFC passed an
order below Exh.1 in R.C.C. No. 188/2001 and decided to frame the
charge as against the Accused Nos. 1 to 4 and 6 after considering oral as
well as documentary evidence.
13. Being aggrieved by the said order, the original accused nos. 1
to 4 the partners and accused No.6 Firm M/s Harsh Laboratories filed
Criminal Revision Application No. 52 of 2015 challenging the order dated
25.11.2015 about framing charge. On 18.09.2017, the learned Revisional
Court passed the impugned order and dismissed the revision of the
accused nos. 1 to 4 and 6, hence, this petition.
14. Mr. Amit Savle, the learned counsel for the petitioners
vehemently canvassed that, the Accused No. 6 Firm is holding licence for
manufacturing and distribution of drugs. The permit for manufacturing
“Ampicillin”, “Claxacilin Capsules” and “Dicilin capsules” under the loan
licence. The Respondent/complainant Food Inspector allegedly visited the
premises of M/s General Medical Store and on 26.04.2000 he allegedly
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taken sample of “Dicilin Capsules” having manufacturing Date October,
1999 and expiry date September, 2001 manufactured by Accused no.6 M/s
Harsh Laboratories. The Respondent/complainant allegedly prepared
form No. 17 and gave one part of said sample of drug to the Proprietor of
the Medical Shop. On 26.04.2000 Credit memo No. 10033 was prepared
for payment of sample. On 28.04.2000, the Respondent/ complainant
allegedly prepared Form No.18 in triplicate and sent a copy to Accused
No.6- Harsh Laboratories and another copy was sent to the Government
Analyst, Drug Control Laboratory, Mumbai for the purpose of testing. On
19.04.2001 the communication was received by the complainant from the
Government Analyst in Form No.13 dated 16.04.2001. As per the said
report, the sample was not of standard quality for the reason as “content
of Claxacilin in sample is less 9.9% than the labelled amount”. On
19.04.2001, a notice under Section 18A and 18B of the Act was issued to
M/s General Medical Stores and called upon to submit required
information. On 25.04.2001, original copy of the analytical report was
forwarded to the Accused No. 6 M/s Harsh Laboratories in compliance of
Sec. 25 (2) and one part of sample of Drug was sent to the Accused No. 6
in compliance of Sec. 23(4)(iii) of the Act. Further, on 25.04.2001, the
Respondent/Complainant sent Notice u/s 18-B of the Act to the Accused
No. 6 Firm. Again on 13.06.2001, the Respondent/ Complainant sent
Notice to Accused No. 6. Accordingly, the Petitioner No. 1/ori. Accused No.
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1 furnished required information including certified copies of the
manufacturing licence product approval, list of approved technical staff,
manufacturing and analysis record, sale details, delivery memo, invoice
credit vouchers, licences in form nos. 20 and 21 on 13.06.2001 and
06.07.2001.
15. The learned counsel appearing for the petitioners further
canvassed that, even if the allegations of the prosecution are taken at their
prima facie value, the petitioners cannot be said to have committed the
offence as charged because the Petitioners/accused Nos. 1 to 4 were not in
control of manufacturing of said Drug. However, as per contents of the
complaint, the present petitioners/ accused Nos. 1 to 4 are partners of
accused No. 6, who distributed the drug in question, manufactured by
accused No. 11 M/s Depila Pharmaceutical Pvt. Ltd. The present
petitioners are not directors nor they are directly responsible for the
commission of the alleged offence on part of the Accused No. 11. Further,
the Accused no. 10 is the approved manufacturing chemist of Accused no.
11, who had approved standard quality of said drug. Therefore, accused
no.10 and 11 are responsible for the analyzing raw material and finished
product. Therefore, no liability can be fastened as against the present
petitioners about contravention of provisions of the Drugs & Cosmetics Act
in respect of drug in question. Therefore, there is no prima facie material
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available against the petitioners for framing the charge, hence, prayed to
set aside impugned orders.
16. Learned counsel appearing for the petitioners further
canvassed that, the petitioners are partners of accused no.6 Harsh
Laboratories, who had received the drug in question under the Loan
licence and therefore, merely distribution of said drug is not sufficient to
hold the petitioners responsible for contravention of the provisions of
section 18(a) of the Drugs and Cosmetics Act. Moreover the petitioners
have submitted all the information, documents, and material available on
record is not sufficient to frame charges against the petitioners/accused
nos. 1 to 4.
17. It is further canvassed that, the respondent/ complainant has
lodged the complaint beyond self life of the drug Dicilin capsules.
Therefore, there is violation of section 25(2) of the Drugs and Cosmetics
Act by not sending the remaining sample to the Central Drug Laboratory.
Therefore, the petitioners could not get another chance to controvert the
report of the Government analyst under section 25(4) of the Act. Further,
the Respondent/Complainant has not provided opportunity to the
petitioners to produce evidence to contrary to the report of the State
Laboratory. However, both the courts below failed to consider mandatory
provisions of law, therefore, findings recorded by both the Courts below
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are perverse, illegal, and bad in law, hence, prayed to quash and set aside
the same.
18. The learned counsel petitioners/accused further canvassed
that, as per contents of the complaint, the Accused No.5 Ronakkumar is
the approved manufacturing chemist of the accused no. 6 Harsh
Laboratories and therefore, accused no.5 is responsible for the conduct of
day to day manufacturing affairs of accused no.6. Therefore, the Accused
no. 5 who is approved chemist of Respondent no.6 can only be
prosecuted, however, the petitioners/ original accused nos. 1 to 4 being
only partners of accused no.6 Firm are not liable for prosecution for
contravention of provisions of the Drugs and Cosmetics Act. Therefore, the
material available on record are not sufficient to frame charges against the
present petitioners/ original accused nos. 1 to 4, however, both the courts
below recorded perverse findings that the material available on record is
sufficient to frame charge and the petitioners/accused nos. 1 to 4 are
responsible for day to day affairs of business of accused no.6. Hence,
prayed to quash and set aside both the orders.
19. The learned counsel for the petitioner further canvassed that
the mere fact that a person holds the position of Director, Manager,
partner or Secretary is not, by itself, sufficient to establish that the offence
was committed with his consent or connivance, in the absence of specific
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and basic pleadings to that effect. In the absence of such averments, the
mere filing of a complaint against such person , does not require him to
face the rigours of prosecution at the behest of the complainant. In
support of these submissions, the learned counsel for the petitioners
placed reliance on the following case laws:
(i) Shailyamanyu Singh Vs. State of Maharashtra, 2025 INSC 995
(ii) M/s Stadmed Pvt. Ltd. Vs. Union of India, Judgment of this
Court (Goa Bench) in Criminal Writ Petition No. 36 of 2005,
dated 18.07.2025.
(iii) State of Karnataka Vs. Pratap Chand and others, AIR 1981 SC
872
(iv) Pepsico India HOldings Pvt.Ltd. Vs. Food Inspector & anr., 2011
Cri.L.J.1012
(v) Adhiraj Amar Kannhaiyalal Sarin Vs. State of Maharashtra, 2011
Cri.L.J. 1297,
(vi) Pannalal Sunderlal Choksi Vs. State of Maharashtra, 2000
Cri.L.J.4442,
(vii) Hemant Sukaji funde Vs. State of Maharashtra, 2017 SCC
Online Bom 8230
(viii) State of Maharashtra Vs. R.A. Chandawarkar , 1999 Cri.L.J.
4449
(ix) Indofil Industries Ltd. Vs. State of Punjab, 2017 Cri. L.J. 4548
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(x) Lalankumar Singh Vs. State of Maharashtra, 2022 SCC Online
SC 1383
(xi) Laborate Pharmaceutical India Ltd. Vs. State of Tamil Nadu,
(2018) 15 Supreme Court Cases 93
(xii) Devendra Vinaykant Sheth Vs. State of Maharashtra, 2018 SSC
Online Bom 3611
(xiii) Ramanbhai B. Patel Vs. S.R. Sharma, Drug Inspector, 1997 (2)
Mh.L.J. 629,
(xiv) United Phosphorus Ltd. Vs. State of Maharashtra & ors. 2009 (3)
LJSOFT 17.
20. Per contra, Mr. V. M. Chate, the learned APP canvassed that,
petitioners/accused Nos. 1 to 4 have not disputed that they are partners of
accused No. 6, therefore, they are responsible for the day to day affairs of
the accused no.6 firm. So also, the complainant/ respondent, after receipt
of analytical report of the sample of drug, on 25.04.2001, he sent notice
under section 18B of the Drugs and Cosmetics Act to accused no.6 and
obtained acknowledgment. Again on 13.06.2001, another notice under
Section 18B of the Act was served upon accused no.6 but again the
accused no.6 failed to produce evidence contrary to the report of State
Laboratory within stipulated period. Therefore, the accused have
contravened the provisions of the Drugs and Cosmetics Act and material
placed on record are sufficient to frame charges against the
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petitioner/accused nos. 1 to 4. Since other accused Nos. 5 and 7 to 11
are not found and as such they are absconding, therefore, the learned
Judicial Magistrate First Class, Shahada proceeded ex-parte under section
299 of the Cr.P.C. against the said absconding accused and passed the
order on 21.11.2015 of framing of charges against the accused. On
18.09.2017, the learned Additional Sessions Judge Shahada passed the
impugned order and dismissed the revision holding that, though the
complaint is filed after expiry of shelf life of the drug but it makes no
difference as after filing of the complaint it is not mandatory on the part
of the Magistrate to send any sample for analysis for want of notyfing
intention by the accused under section 25(3) of the Drugs and
Cosmetics Act. Therefore, findings recorded by the learned Revisional
Court are just and proper, hence, prayed for dismissal of the petition.
21. The learned APP further canvassed that, the Petitioners/
accused have failed to avail opportunity to produce contrary evidence
inspite of providing ample opportunities. Therefore, at this stage, the
petitioners are having no voice to claim that no such opportunities were
granted to them. It is further canvassed that, the petitioners/accused have
not denied analytical report of the State Laboratory in respect of testing of
Dicilin Capsules. The Petitioners failed to avail the remedy to produce
contrary report of the drug inspite of service of State Laboratory Report
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and one part of sample within 28 days. Therefore, findings recorded by
both the courts below are just and proper and no substantial grounds are
set out to interfere with the said findings, hence, prayed for dismissal of
the petition.
22. In the case in hand, it is not in dispute that original accused
no.11 M/s. Depila Pharmaceutical Pvt. Ltd. is the manufacturing company
of the drug Dicilin Capsules. Accused Nos. 7, and 8 are the Directors of
Accused no.11 Pharmaceutical Company. Accused no.9 is the approved
manufacturing chemist of accused no.11 and accused no.10 is the
approved analytical chemist of accused no.11 Manufacturing Company. It
is not in dispute that, the Accused no.6 M/s Harsh Laboratories is the
distributor of Dicilin Capsules. The petitioners/original accused nos. 1 to 4
have not disputed that, they are partners of Accused no.6 Firm which is
engaged in manufacturing and distribution of drugs like Ampicillin &
Claxacilin capsules and Dicilin Capsules under the loan licence.
23. On face of record it appears that, on 24.06.2000, M.K.
Rajpal, Drugs Inspector, Office of Assistant Commissioner, Food & Drug
Administration (M.S.) visited the premises of M/s General Medical Stores
and drawn sample of drug Dicilin Capsules of Batch No. 91001, having
Manufacturing date October, 1999 and Expiry date September, 2001.
Thereafter, he prepared Form No.18 in triplicate and sent a copy of the
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same to accused no.6 and another copy to the State Drug Control
Laboratory at Mumbai for testing. On 19.04.2001, the
Respondent/complainant received a report from the State Government
Analyst. As per said report, sample of drug Dicilin Capsules was not of
standard quality and contents of Claxacilin in sample is found 9.9% less
than the labelled amount. Therefore, copy of said report was supplied to
the proprietor of M/s General Medical store and requested for information
about manufacturer and distributor of the said drug. Not only this but on
25.04.2001, the original copy of analytical report was supplied to the
Accused no.6 Firm in Form No. 13 as prescribed under Section 25(2) of
the Act. It is also not in dispute that, one part of sealed sample of the Drug
in compliance of section 23(4)(ii) alongwith notice under Section 18B of
the Drugs and Cosmetics Act was also supplied to the Accused No. 6 Firm.
However, no information was supplied by the accused no.6. Therefore,
again on 13.06.2001, notice under section 18-B was served upon accused
no.6 M/s Harsh Laboratories. Thereafter, Mr. Hitesh Patel, the Petitioner
no. 1/partner of accused no. 6 furnished information and produced
certified copies of manufacturing licence, product approval, list of
approved technical staff, manufacturing and analysis record, sale details,
delivery memo, invoice, credit voucher, licence in form 20B and 21B.
Therefore, all these documentary evidence prima facie shows that, the
petitioners/accused 1 to 4 are responsible for day-to-day affairs and
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business of the Accused No. 6. So also, all above documentary evidence
are sufficient to frame chage against the petitioners.
24. Section 23 of the Drugs and Cosmetics Act Act contemplates
about procedure required to be followed by the Drugs Inspector while
taking samples of drugs or cosmetics for analysis. Section 22 vests the
powers on the Drugs Inspector to visit inspect any premises within its
local limit for inspection, search, seize, and take samples. Section 25
provides about reports of Government Analysts.
25. Section 25 of the Act provides as under:
Reports of Government Analysts (1) The Government
Analyst to whom a sample of any drug or cosmetic has been
submitted for test or analysis under sub-section (4) of section 23,
shall deliver to the Inspector submitting it a signed report in
triplicate in the prescribed form.
(2) The Inspector on receipt thereof shall deliver one copy of
the report to the person from whom the sample was taken
and another copy to the person, if any, whose name, address
and other particulars have been disclosed under section 18A,
and shall retain the third copy for use in any prosecution in
respect of the sample.
(3) Any document purporting to be a report signed by a
Government Analyst under this Chapter shall be evidence of
the facts stated therein, and such evidence shall be
conclusive unless the person from whom the sample was
taken or the person whose name, address and other
particulars have been disclosed under section 18A has, withinPage 17 of 27
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notified in writing the Inspector or the Court before which
any proceedings in respect of the sample are pending that he
intends to adduce evidence in controversion of the report.
(4) Unless the sample has already been tested or analysed in
the Central Drugs Laboratory, where a person has under sub-
section (3) notified his intention of adducing evidence in
controversion of a Government Analyst’s report, the Court
may, of its own motion or in its discretion at the request
either of the complainant or the accused cause the sample of
the drug or cosmetic produced before the Magistrate under
sub-section (4) of section 23 to be sent for test or analysis to
the said Laboratory, which shall make the test or analysis and
report in writing signed by or under the authority of, the
Director of the Central Drugs Laboratory the result thereof,
and such report shall be conclusive evidence of the facts
stated therein.
(5) The cost of a test or analysis made by the Central Drugs
Laboratory under sub-section (4) shall be paid by the
complainant or accused as the Court shall direct.
26. On analysis of Section 25, it reveals that, the
Government analyst requires to submit testing report and it shall be
delivered it to the Inspector under its signature in prescribed form in
triplicate. Thereafter, duty cast upon the Inspector to deliver one copy of
the report to the person from whom the sample was taken and another
copy of the report is required to be delivered to the person whose name,
address and other particulars have been disclosed under section 18A and
third copy of it required to be retained for use in any prosecution in
respect of the sample. As per sub section 3 of Section 25, the report
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signed by a Government Analyst shall be conclusive evidence of the facts
unless the person from whom the sample was taken or the person whose
name, address and other particulars have been disclosed under section
18A has, within twenty -eight days of the receipt of a copy of the report,
notified in writing to the Inspector or the Court before which any
proceedings in respect of the sample are pending that he intends to
adduce evidence in controversion of the report. As per sub section 4 of
Section 25, unless the sample has already been tested or analyzed in the
Central Drugs Laboratory, where a person has under sub-section (3)
notified his intention of adducing evidence in controversion of a
Government Analyst’s report, the Court may, of its own motion or in its
discretion at the request either of the complainant or the accused cause
the sample of the drug, sent for test or analysis to the central Laboratory,
at the cost of complainant or accused as may be directed.
27. In the present case, the petitioners have not denied about
seizure of Dicilin Capsules by the complainant on 26.04.2000 from the
establishment of M/s General Medical Store and sending sample of it for
examination to the State Laboratory on 28.04.2000 within shelf life
period of the said sample. As per the drug details, manufacturing date is
October, 1999 and expiry date of drug sample is September, 2001. The
complainant had received the analytical report on 19.04.2001 under
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communication dated 16.04.2021 and on next day i.e. 20.04.2001, copy
of report was served upon the establishment of M/s General Medical
Stores from whom the sample was collected. So also, on 25.04.2001, the
report of analyst was supplied to accused no.6 Firm. The petitioners are
partners of accused no.6 Drugs Distribution Firm have not denied about
service of State Laboratory/analyst Report. The Petitioner neither replied
said notice nor they shown intention to adduce evidence to contravene
said report as contemplated under section 25(3) of the Drugs and
Cosmetics Act within period of 28 days from the receipt of copy of the
report. The Petitioners/partners of Accused No. 6 also failed to examine
said sample through Central Laboratory.
28. The aim and object of Section 25(2) of the Act for sending
the copy of the report within time period so that the person who
contravened the report can get a chance to send remaining sample to the
Central Government Laboratory and to submit contrary Report. Further
the proceeding against a person who contravened the provisions of the
Drugs could have another opportunity to controvert the report of the
Government analyst as contemplated under Section 25(4) of the Drugs
and Cosmetics Act. However, the petitioners have brought nothing on
record to show that even after service of copy of the report on 25.4.2001,
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they shown their intention to give evidence to controvert the State
Laboratory Report.
29. No doubt, the petitioners have contended that they are not
responsible for the day to day affairs of manufacturing of Dicilin Capsules,
however, evidence collected by the Respondent/ Complaiant appears that,
the present petitioners are partners of the Accused No. 6 Firm and
Accused No. 5 is servant of the Accused No. 6. It is a trite and well-settled
principle of law that a master is vicariously liable for the acts of his
servant. Section 32 provides for taking cognizance under the Drugs and
Cosmetics Act and Sec. 3 (f) provides definition of “manufacture”
including process of making, altering, ornamenting, finishing, packing,
labelling, breaking up or otherwise treating or adopting any drug or
cosmetic with a view to its sale or distribution.
30. Sec. 3 (f) of the Act provides definition of “manufacture” in
relation to any drug or cosmetic includes any process or part of a process
for making, altering, ornamenting, finishing, packing, labelling, breaking
up or otherwise treating or adopting any drug or cosmetic with a view to
its sale or distribution but does not include the compounding or
dispensing of any drug, or the packing of any drug or cosmetic, in the
ordinary course of retail business; and “to manufacture” shall be construed
accordingly;
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Section 34 of the Companies Act,1956 provides as under:
“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 was
committed without his knowledge or that he exercised all
due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub -section (1),
where an offence under this Act has been committed by a
company and it is proved 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.
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31. Needless to say that, the present petitioners /accused nos. 1
to 4 are admittedly the partners of accused no.6 and as per Sec. 34 of the
Companies Act, 1956, the Director/Partners who are responsible for day to
day affairs of the accused company or firm are having vicarious liabilities
for the offence committed by the company /firm.
32. Needless to say that, the case in hand, the petitioners, who
are partners of respondent no.6 have filed the present petition without
impleading accused no.6 distribution firm, though the said firm was
impleaded as Applicant no.5 in Criminal Revision Application No. 52 of
2015. Therefore, it prima facie appears that, the accused no.6 Firm do not
wish to challenge the Order of framing of charge passed by the learned
Judicial Magistrate First Class Shahada on 25.11.2015 and confirmed the
said order by the learned Revisional Court by impugned Judgment order
dated 18.09.2017 in Revision No. 32 of 2015.
33. In case of Nilesh Agarwal Vs. Income Tax Office, 2025
Supreme (Online)(Del)7675 =2025 DHC 8961 , the Delhi High relied
upon the cases of UP Pollution Control Board v. Modi Distillery (1987) 3
SCC 684, Aneeta Hada Vs. Godfather Travels & Tours,(2012) 5 SCC 661,
Sharad Kumar Sanghi Vs. Sangita Rane, (2015) 12 SCC 781, and held
that where the offence is committed by a Company, the company as well
as every person in charge shall be deemed guilty and when the act alleged
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is committed by the Company, its officers cannot be prosecuted in
isolation. Thus, in absence of the Company being made an accused, the
prosecution is contrary to Section 27B.
34. However, in case in hand, the Petitioners /Accused Nos. 1 to 4
have challenged the legality and validity of order of framing of charge
passed by the learned Judicial Magistrate on 21.11.2015 and confirmed by
the learned Revisional Court on 18.09.2017 holding that, the
petitioners/original accused nos. 1 to 4 and 6 have not denied the receipt
of notice dated 25.04.2001 alongwith drug sample and they failed to get
the drug sample tested through Central Laboratory.
35. The scope of framing of charge and responsibility while
commission of offences are two different questions. It is trite and settled
principal of law that, merely because a person is director, manager,
secretary of the Company is not self sufficient to establish that offence is
committed with his consent or connivance of the Directors/Secretary in
the absence of basic pleading in that behalf. However, in case in hand the
petitioners have not challenged order of issuance of summons or they have
not prayed quashment of the criminal complainant but the petitioners
have challenged the impugned Judgment and order passed by the learned
Revisional Court affirming the order of framing of charge.
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36. Sec. 240 (1) of Cri. P. C., provides that, if, upon such
consideration, examination, if any, and hearing, the Magistrate is of
opinion that there is ground for presuming that, the accused has
committed an offence triable under Chapter XIX of the Code, which such
Magistrate is competent to try and which, in his opinion, could be
adequately punished by him, he shall frame in writing a charge against the
accused.
37. Therefore, at the time of framing of a charge the Magistrate is
required to consider the averment made in the complaint as well as
evidence before charge led by the Respondent/ Complainant. In case in
hand it appears that, the Respondent/ Complainant adduced the evidence
before charge in presence of present petitioners/accused nos. 1 to 4. On
the basis of evidence before charge, the learned JMFC held that the
petitioners/ accused Nos. 1 to 4 failed to communicate and notify their
intention to adduce evidence in controversion of the laboratory report as
contemplated under Section 25(3) of the Drugs and Cosmetics Act despite
of service of letters dated 13.06.2001 and 21.06.2001. The record reveals
that, though the respondent-complainant sent third sealed sample through
Registered post parcel with letter Exh.82 dated 25.04.2001, which was
duly acknowledged by the accused, but the petitioners/accused failed to
show their intention to produce contrary evidence. Therefore, the
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material available on record are found to be sufficient to frame the charge
against the accused persons, hence, the learned Magistrate passed the
reasoned order on 21.11.2015 and proceeded to frame the charge against
the petitioners.
38. On 18.09.2015, the learned Additional Sessions Court passed
the impugned Judgment and held that, the Petitioners /original accused
nos. 1 to 4 and accused 6 have not denied about receipt of notice dated
25.04.2001 alongwith drug sample but they failed to get drug sample
tested through Central Laboratory. The findings recorded by both the
Courts below about availability of sufficient material for framing of charge
as against the petitioners/ accused certainly justifiable and no substantial
grounds are set out to interfere with concurrent findings of both the
Courts below.
39. In case in hand, the petitioners accused Nos. 1 to 4, claimed
that the Accused No.5 Ronakkumar is an approved Manufacturing Chemist
of accused no.6 and he is responsible for distribution and manufacturing
of the products on behalf of accused no.6, whereas accused nos. 1 to 4
petitioners are the partners of accused no.6. The
Respondent/Complainant has specifically made averment that, all the
accused 1 to 11 including the present petitioners (accused nos. 1 to 4),
who are partners of Accused no. 6 Firm are responsible for manufacturing
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and distribution of “Dicilin Capsules”. As per the averment made in the
complaint, the said drug is manufactured by the Accused No. 11 Company
and distributed by the Accused No. 6. Therefore, considering provisions of
Sec. 3 (f) of the Drugs and Cosmetics Act, the petitioners cannot escape
from their liability for contravention of provisions of the said Act.
40. The present petitioners/ accused Nos. 1 to 4 are responsible
for the offence committed by the Accused No. 6 Firm and the petitioners
are certainly having vicarious liability for the offences of any act done by
the firm/company i.e. accused no.6 as per Section 34 of the Companies
Act.
41. On perusal of impugned judgment and order dated
18.09.2017 passed by the learned Revisional Court as well as order dated
27.11.2015 passed by the learned JMFC, Shahada, the findings record that
both the courts appear to be just and proper and therefore, no interference
is called for at the hands of this Court.
42. In view of the above discussion, the writ Petition is dismissed.
Rule is discharged.
( Y. G. KHOBRAGADE, J. )
JPChavan
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