ORDER
1. The petitioner is accused 1, who had been described as 'M. V. Arunachalam, Chairman, Chamudeswari Baugh, 1, Bishop's Gardens, Opp : Greenways Road, Madras-25' in the complaint, taken on file as C.C. No. 2213 of 1988 on the file of the Sub-Divisional Judicial Magistrate, Dindigul.
2. Accused 2 is one J. Jayalakshmi, Proprietrix, Gupta Traders, 325, New Dharapuram Road, Palani.
3. On 25-7-1986, one P. V. Susil Kumar, B.Sc., (Agri), the Agricultural Officer (Plant Protection) in charge; took the sample of Endosulphan 35% EC 250 ml. container from the business premises of accused 2 as per the Insecticides Act, 1968 (Act No. 46 of 1968 - for short 'the Act'). One such sample so taken was sent to the Assistant Agricultural Chemist (Pesticide Testing Laboratory), Madurai. After analysis, the sample wad declared as 'misbranded.'
4. After issuing show-cause notices to the persons concerned and not having been satisfied with the replies elicited therefor, the respondent herein launched a prosecution by filing a complaint against accused 1 and 2, which is now pending in the aforesaid Calendar Case.
5. On receipt of process, the petitioner - accused 1 came forward with the present action invoking the inherent jurisdiction of this Court to quash the criminal proceedings initiated against him.
6. Learned Counsel appearing for the petitioner would, in a sly and picturesque fashion point out that he was unable to understand in what capacity the petitioner had been prosecuted for the alleged refraction or violation of the provisions of the Act. In amplification of the same, he would say that there is nothing traceable by way of allegations in the complaint as to whether he had been prosecuted as the manufacturer of Endosulphan 35% E.C. or as a person in any way connected with the company manufacturing such product, in the sense of himself being in charge of or responsible for the conduct of the business of the company. In this view of the matter, he would say that the allegations in the complaint are so vague as could be and in such state of affairs, there is no other go for this Court except to quash the criminal proceedings initiated against him.
7. Learned Additional Public Prosecutor would however repel such a submission.
8. The significance of the submission of learned Counsel for the petitioner can very well be understood by making a probe into the circumstances, which impelled the respondent to initiate or launch prosecution. Items 2 and 3 in the list of documents shown in the complaint, if perused, would indicate the person responsible for manufacturing the aforesaid product, which was found to be misbranded on analysis. The manufacturer, according to those documents, is none else than E.I.D. Parry (India) Ltd., Madurai. Admittedly, E.I.D. Parry (India) Ltd., is not at all prosecuted. So far as the petitioner accused 1 is concerned, he had been simply described in the cause-title, as referred to above, as chairman and it is not known as to whether he is the Chairman of E.I.D. Parry (India) Ltd.
9. The further startling factor is that nothing had been averred in the complaint, even assuming that he happens to be the Chairman of the said company, that he was in charge of or responsible to the conduct of the business of the company, in his capacity as Chairman. The further agonising factor is that the allegation in the complaint proceeds on the footing that he is the manufacturer and distributor of the misbranded chemical Endosulphan 35% E.C. 250 ml. Accused 2 is stated to be a retail dealer of the misbranded chemical, who had not opted to challenge the prosecution as against her.
10. At this juncture, it is worthwhile to refer to the salient provisions adumbrated under Section 33 of the Act. It runs as follows :
'33. Offences by companies - (1) Whenever 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, or was responsible to the company nor 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 under 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 purpose of this section, -
(a) 'company' means anybody corporate and includes a firm or other association of individuals; and
(b) 'director', in relation to a firm, means a partner in the firm.'
11. As per the provision, as extracted above, the company as well as the person who at the time the offence was committed was in charge of or was responsible to the company for the conduct of the business are prosecutable. The fact that the company was not prosecuted is no ground at all for the person, who was in charge of or responsible to the conduct of the business of the company, to say that the prosecution as launched against him alone, without impleading the company is not maintainable in law.
12. But so far as the case on hand is concerned, as respects the petitioner - accused 1, even assuming that he was the Chairman of E.I.D. Parry (India) Ltd., there was no allegation in the complaint, as already stated, that he was in charge of or was responsible for conduct of the business of the company. By virtue of his being the Chairman of the company, no vicarious liability can be fastened or mulcted upon him for the alleged refraction or violation of the provisions of the Act, unless there be an allegation, as contemplated in the aforesaid section that he was in charge of or was responsible for conduct of the business of the company at the time the offence was committed. In the absence of such an allegation, it goes without saying that the prosecution, as launched against the petitioner - accused 1, is not sustainable in law and in this view of the matter, the petition deserves to be allowed.
13. In the result, the petition is allowed and the criminal proceedings initiated against the petitioner - accused 1 in C.C. No. 2213 of 1988 on the file of the Sub-Divisional Judicial Magistrate, Dindigul shall stand quashed.
14. Petition allowed.