ORDER
1. This petition is filed under S. 482, Cr.P.C. to quash the proceedings against the petitioners in C.C. 298/1989 on the file of the 5th Addl. Munsif Magistrate, Guntur. The petitioners and others are represented under the Insecticides Act. A-3 is the manufacturing company, which is represented by its Assistant Depot Manager N. Sundaresan. A-5 again is the manufacturing concern i.e., M/s. Bharat Pulverising Mills (P) Ltd., Bombay represented by its Director Sri N. S. Shah. A-4 is the Assistant Depot Manager. Accused 6 to 8 are the Directors of the company. A-9 is a Chemist of the Company.
2. In so far as the Directors of the company are concerned, their contention is that since there is no allegation in the complaint that they are in charge or responsible for the conduct of the business of the company they cannot be held liable. S. 33(1) of the Insecticides Act says that the company and every person who was in charge or was responsible to the company for the conduct of the business of the company shall be guilty. The learned counsel for the petitioners has referred to the decision of the Supreme Court in Delhi Municipality v. Ram Kishan, : 1983CriLJ159 in which it is stated : 'The complaint was filed against the company, its Directors and the Manager. So far as the Directors are concerned, there is not even a whisper nor a shred of evidence nor anything to show, apart from the presumption drawn by the complainant, that there is any act committed by the Directors from which a reasonable inference can be drawn that they could also be vicariously liable. In these circumstances, therefore, it can be said that no case against the Directors has been made out ex facie on the allegations made in the complaint and the proceedings against them were rightly quashed by the High Court.' It is a case under Prevention of Food Adulteration Act but the principle is the same. He has also referred to the decision in V. B. Satyalingam Chettiar v. Labour of Icer, Nellore, (1986) 59 Com Cas 701. That was a case under the payment of Bonus Act. In that case it is pointed out that : 'Therefore, without there being a prosecution against the company itself which is the employer, no prosecution against one of the Directors is permissible.' It is further pointed out that it is incumbent upon the complainant in such a case to allege that the person against whom the complaint was lodged was in charge of and was responsible to the company for the conduct of its business. I, therefore, agree with the contention of the learned counsel for the petitioners that so far A-6 to A-8, who are Directors are concerned, the prosecution is liable to be quashed because there is no allegation that they are in charge or responsible for the conduct of the business of the company as contemplated under Section 33(1) of the Act. So far as the Depot Manager, A-4 is concerned, he is only representing the company which is the 3rd accused. He cannot be made liable again in his individual capacity. As I have stated above, the company is shown as A-3 and A-5 and A-3 is represented by its Depot Manager and A-5 is represented by one of its Directors. S. 305, Cr.P.C. provides that a company can be represented by a person who is nominated. It may appoint any representative for purpose of the trial as required under S. 305, Cr.P.C.
3. Next comes the question of the Chemist who is accused No. 9. Even with regard to the Chemist the contention in para 3(O) of the petition is that he also said to be in charge or responsible for the day-to-day business of the company and on that ground the proceedings are sought to be quashed against him also. That is based on S. 33(1) of the Act which I have referred to above. But sub-section (2) of S. 33 says that 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. The prosecution case is that a sample of the insecticides was found to be misbranded. The Chemist is the person in charge of the manufacturing process. In fact in the decision : 1983CriLJ159 referred to above, it is pointed out that 'however a Manager of the company who is directly in charge of its affairs, could not fall in the same category as the Directors. It could not be reasonably argued that no case is made out against the Manager because from the very nature of his duties, it is manifest that he must be in the knowledge about the affairs of the sale and manufacture of the disputed sample. From the very nature of his duties it can be safely inferred that the Manager would undoubtedly be vicariously liable for the offence; vicarious liability being an incident of an offence under the Act.' Therefore, the Chemist from the very nature of his duties, is a person who is responsible for the manufacturing process and if it is proved that the offence is committed either with the consent or connivance or is attributable to any neglect on his part he will be guilty of the offence. It is a matter of evidence whether there is any connivance or neglect on his part. The learned counsel for the petitioners also pointed that that there may be several Chemists in this company and it cannot be said that this Chemist who is A-9 alone is responsible for the offence. It is a matter of evidence as to whether A-9 was the Chemist responsible for the production or manufacture of the insecticide which is alleged to be misbranded or whether the offence was committed with his consent or on account of his negligence. So, at this stage the proceedings against him i.e. A-9 cannot be quashed.
4. So, the proceedings against A-4 and A-6 to A-8 alone was quashed. The petition is accordingly ordered.
5. Order accordingly.