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 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 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, 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 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.

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 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.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 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 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 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

                   (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 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 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 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 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, within

twentyeight days of the receipt of a copy of the report, 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 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 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, 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;

                   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.

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 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.

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 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 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.