G.S.CHAHAL,J - (1.) KAVITA Mittal and Dinesh Kumar who are being prosecuted as partners of M/s M.D. Pharmaceuticals, Muzaffarnagar, seek quashing of the complaint and all consequent proceedings.
(2.) M /s Pharmaceuticals are alleged to be manufacturing Deptrim tablets each tablet containing sulphamethoxazole IP 400 mg. Trimethoprim IP 80 mg. under licence No. 25 of 1985 granted by the Drug Controller, UP. A sample of this drug was drawn from Hans Medicos, Main Bazar, Jodhan, District Ludhiana and on analysis, it was found to be mis-branded and being not of the standard fixed. Mrs. Satinder Khanna who appears for the petitioner has challenged the prosecution on the basis that the offence, if any, was committed by the company M/s M.D. Pharmaceuticals or by any person who was incharge of and responsible to the company for the conduct of the business at the time of commission of the offence. That the complaint does not state any facts which may make the petitioners liable. They are only described to be the partners of the firm in the heading of the complaint. The contention of the learned counsel has force.
(3.) SECTION 34 of the Act, so far as relevant, reads as under :- "34. Offences by companies - (1) Where an offence under this Act has been committed by a company, 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 exercised all due diligence to prevent the commission of such offence." To make any partner liable for an offence committed by the company, it has to be shown that such person was in charge of and was responsible to the company for the conduct of the business of the company at the time of commission of the offence. Since in the complaint, no allegations have been made against any of the present petitioners, the prosecution is bad in law.;