(1) This petition is filed under section 482, criminal procedure code, 1973, to quash the proceedings against the petitioners in c. C. No. 298 of 1989 on the file of the fifth additional munsir magistrate, guntur. The petitioners and others are prosecuted under the insecticides act, 1968. A03 is a manufacturing company, which is represented by its assistant depot manager, n. Sundaresan. A - 5 again is the manufacturing concern, i. E. Bharat pulverising mills (p) ltd. , bombay, represented by its director, sri n. S. Shah. A - 4 is the assistant depot manager. Accused nos. 6 to 8 are 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 of or responsible for the conduct of the business of the company, they cannot be held liable. Section 33 (1) of the insecticides act say that the company and every person who was in charge of, or was responsible to, the company for the conduct of the business of the company shall be guilty.
(3) Learned counsel for the petitioners has referred to the decision of the supreme court in municipal corporation of delhi v. Ram kishan rohtagi, air 1983 sc 67, in which it is stated (head note) :
"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 victoriously 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."
(4) It is a case under the prevention food adulteration act but the principle is the same. He has also referred to the decision in v. B. Sivalingam chettiar v. Labor officer, nellore [1986] 59 comp cas 701 (ap). That was a case under the payment of bonus act. In that case, it is pointed out that (head note) :
"therefore, without there being a prosecution against the company itself which is the employer, no prosecution against one of the directors is permissible."
(5) It is further pointed out 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'm therefore, agree with the contention of learned counsel for the petitioners, that so far as 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 of, 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 third 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. A03 is represented by its depot manager and a - 5 is represented by one of its directors. Section 305, criminal procedure code, provides that a company can be represented by a purpose of the trial as required under section 305, criminal procedure code.
(6) 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 cannot be said to be in charge of, 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 section 33 (1) of the act which i have referred to above. But sub - section (2) of section 33 days 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 in municipal corporation of delhi v. Ram kishan rohtagi, air 1983 sc 67, referred to above, it is pointed out that (head note) :
"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 victoriously liable for the offence vicarious liability being an incident o f an offence under act`."
(7) 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 his 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 as the whether there is any connivance or neglect on his part. Learned counsel for the petitioners also pointed that there may be several chemists in this company and it cannot be said that this particular 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, a - 9 cannot be quashed.
(8) So, the proceedings against a - 4 and a - 6 to a - 8 alone are quashed. The petition is accordingly ordered.