M.N.A. Arumugha Perumal and Others vs State

K.M. Natarajan, J.—This petition is filed by accused 2, 3 and 5 in C.C. 95 of 1984 on the file of the Chief Judicial Magistrate, Chingleput,

to quash the said proceedings.

The Respondent, viz, Drug Inspector, Chingleput Range, Kancheepuram, filed a complaint against the Petitioners and two others under Sections

18(a)(i) and 27(b) of the Drugs and Cosmetics Act, on the allegation that A1, Messrs Arutnugam Surgical Cottons, manufactured surgeons

absolvent cotton wools and the samples which were taken from the surgical stores of the Chengalpattu Medical College Hospital were found to be

not of standard quality. Accused 2, 3 and 5 are sleeping partners and are the Petitioners herein. A4 is another partner and A6 is the manufacturing

chemist. After giving notice the accused were prosecuted. Learned Counsel for the Petitioners mainly contended that so far as the Petitioners are

concerned, they are sleeping partners and even in the complaint it was not alleged that they were in charge of or were responsible for the conduct

of the business as contemplated u/s 34 of the Drugs and Cosmetics Act, 1940. In the absence of allegation, the mere fact that they are partners is

not sufficient to prosecute them for the offence complained of. In support of his contention, the learned Counsel relied on the decision in State of

Karnataka v. Pratap Chand 1911 Cri. LJ. 595 wherein the Supreme Court held:

Where the Partnership firm was charged for the offences u/s 18(a)(ii) and (c) the partner of the firm who was in overall control of the day to day

business of the firm would alone be liable to be convicted and the partner who was not in such control could not be proceeded with merely

because he had the right to participate in the business of the firm under the terms of Partnership deed.

In G.L. Gupta v. D.N. Mehta A.I.L. 1971 S.C. 28. the Supreme Court dealing with Section 23C of the Foreign Exchange Regulation Act, 1947,

held as follows:

In seems to us that in the context a person ''in charge'' must mean that the person should be in overall control of the day to day business of the

company or firm. This inference follows from the wording of Section 23C(2) . It mentions director, who may be a party to the policy being

followed by a company and yet not be in charge of the business of the company. Further, it mentions manager, who usually is in charge of the

business but not in overall charge. Similarly, the other officers may be in charge of only some part of business.

On a perusal of the complaint, I find except a mention that they are partners of A1 company, there is nothing alleged that they were in the overall

control of the day to day business of A1 company.

On the other hand, the learned Government Advocate stated that in view of the proviso to Section 34, it is for the accused to prove that the

offence was committed without he knowledge or that they had exercised due are and diligence for the prevention of such offence and that,

therefore, the proceedings cannot be quashed at this stage.

In view of the decision of the Supreme Court referred to above and considering the acts and circumstances of the instant case, find that the initial

burden lies on the compliment-Drug Inspector to show that the accused were in overall control of the business of the Company, and, in the

absence of the