Arunachalam, J.:— Petitioners, 14 in number, are the accused in C.C No. 2622 of 1989, pending on the file of the XVIII Metropolitan Magistrate, Saidapet, Madras.

2. Petitioners are being prosecuted, for having manufactured a spurious Drug, punishable under section 27(c) read with section 17(B)(a) of the Drugs and Cosmetics Act, 1940. The prosecution, is on a private complaint, and the respondent is the complainant. The allegations in the complaint show, that the first petitioner is a private limited company, having its registered office at Madras; petioners 2 to 6 are the directors of the first petitioner company; petitioner 7 is a public limited company having its registered office at Bombay and petioners 8 to 14 are the directors of petitioner 7. The complainant claims to be the manufacturer of a drug bearing the brand name Cal-De-Ce. The ingredients of this drug are Calcium Gluconate, Vitamin C and Vitamin D. Cal-de-fie is stated to fall under the definition of patent of proprietary medicine, under lection 3(b)(ii) of the Drugs and Cosmetics Act.

3. The avernments in the complaint show, that the complainant had been manufacturing Cal-de-ce since 1986, by virtue of a licence issued with effect from 10-7 1986 and which was renewed and was valid at or about the time, this private complaint was instituted From the inception petitioner 7 was the sole selling agent, of this product of the complainant. In 1986, before the licence was issued to the complainant, the Drug Controller of Karnataka called upon the 7th petitioner to surrender their earlier licence and further give an undertaking, that they would not be manufacturing the same drug either in their own name or in the name of anybody else This was necessitated, since the 7th petitioner was manufacturing the same drug, in their own name, prior to 1986. The 7th petitioner furnished a letter of undertaking to the Drugs Controller of Karnataka as required, and thereafter, the manufacturing licence in favour of the complainant was issued.

4. The complaint further states, that in contravention of law, petitioners 1 to 7 have subsequently entered into an illegal arrangement by which petitioner No. 1 has started manufacturing the identical drug, with the identical name Cal-de-ce and the 7th petitioner has been buying, stocking and marketing the same. On enquiry, the complainant found, that with the help of the 7th petitioner, the first petitioner had secured a drug manufacturing licence from the Drugs Controller of Tamil Nadu, suppressing the continued validity of the licence granted earlier in 1986, for manufacturing the same drug, by the complaiaint though by the Drugs Controller of Karnataka. The complainant further states. That under section 32 of the Act, the complainant would be an aggrieved person. Apart from both the companies shown as A. 1 and A 7 in the complaint, the otheir accused are being prosecuted, since they happen to be the directors of either of the eompanis. The learned trial magistrate after recording the sworn statement of the complainant took cognizance of the offence, and issued process to all the petitioners.

5. In this petition, preferred under section 482 of the Criminal Procedure Code, to call for the records and quash the pending prosecution as not maintainable and an abuse of the process of court Mr. C, Franco Louis, learned counsel appearing on behalf of the petitioners, contended, that Gal-de-ce will attract provisions of Section 3(h)(ii) of the Act. However, this patent or proprietary medicine will not fall within the ambit of spurious drug, contemplated under section 17(B)(a) of the Act. According to the learned counsel, the trade name will not be the criterion but the ingredients of the drug would be the criterion to attract the definition of spurious drug. To substantiate his contention, he referred to section 16(1)(a) of the Act, which deals with standards of quality. In this context, Schedule 2 was also referred to. In other words, the contention of the learned counsel was, that a drug can be sold without a trade name, but the real name of the drug will be only its ingredients. In the same strain, reference was made to section 124B and Schedule V. Thereafter, the learned counsel brought to my notice section 18(a)(iii), which prohibits the manufacture and scale of any patent or proprietary medicine, unless there is displayed in the prescribed manner, on the label or container thereof, the true formula or list of, active ingredients contained in it, together with the quantities thereof. In this connection, he also pointed out, rule 103(3), which reads that the true formula or list of the ingredients shall be printed or written in indelible ink on the outer label of every package containing a patent or proprietary medicine. The learned counsel then urged, that rule section 96(A) and (B) contemplate the difference between the trade name and the drug name, and what was therefore required was the generic name and not the trade name. By reference to Indian Pharmaceutical Guide, he contended that Analgin” was manufactured by several companies, though the name of the drug is Analgin. Several such drug names were pointed out. He further contended, that the Indian Pharmacopoeia under the head Patents and Trade Marks reads that the inclusion in the Indian Pharmacopoeia of any drug subject the actual or potential, patent or similar rights, or the inclusion of any name which is a trade mark in any port of the world, doesnot and shall not be deemed to imply or convey permission, authority, or licence to exercise any right or privilege protected by such patent or trade mark, including licence to manufacture, without due permission, authority or licence from the person or person in whom such rights and privileges are vested, and this fact will have to be given due significance, while considering the impact of section 17B(a) of the Act.

6. He then contended, that, to be a Person Aggrieved one has to be equated to a Recognised Consumer Association contemplated under section 32 ©f the Act. In other words, the point urged was, that one manufacturer cannot institute a prosecution against another, since he would, not he a consumer on the basis of secion 34 of the Act, the learned counsel, argued, that there was lack of allegations in the complaint, to prosecute petitioners 2 to 6 and petitioners 8 to 14. He finally, contended that multiplicity’ of proceedings, should not be encouraged and even on that score”, the pending prosecution should not be allowed to survive. For this proposition, he stated that the respondents initially preferred a writ petition in this court, for cancellation of the licence of the petitioners, on the ground, that Cal-de-ce mauufactured by the petitioners was a spurious drug falling within the ambit of section 17B(a) of the Act. In the writ petition, a verdict was rendered, directing the Drugs Controller to consider the matter afresh, regarding cancellation of licence. However, on a Writ Appeal, preferred by the petioners, a Division Bench of this court, while agreeing that a fresh disposal had to be given by the Drugs Controller observed that, the ground, that such a consideration was for cancellation of licence, had to be deleted. The learned counsel also stated about the pendency of C.S No. 1220 of 1988 and C.S No. 972 of 1989 on the Original Side of this court between the parties, apart from a suit, filed by the petitioners in Baroda, wherein an ex-parte order of injunction, has been issued against the respondent on 1-4-1989 and confirmed on 21-6-1989. The learned counsel urged, that the object of the respondent, was to harrass the petitioners.

7. On these contentions, I have heard Mr. A.L Somayaji, learned counsel, appearing on behalf of the respondent. He contended, that an artificial definition has been given under section 17B(a) of the Act and in fact, a fiction was created. He urged, that unless there is ambiguity, there will be no need to look into the object and reasons which prompted the legislation. The language of section 17B(a) of the Act, was so clear and explicit that no form of amibguity exists. Similarly, he contended, that the word ‘aggrieved’ in section 32 of the Act would include the respondent, and therefore the contention that the complainant should also be a consumer should not accede to, for, then, the very object would be thwarted. He submitted, that once a person is stated to be a director in charge, he must be deemed to be responsible for the conduet of the business of the company and hence the other petitioners apart from petitioners 1 and 7 cannot also be excluded. He contended, that the main issue in the civil suit, was not, whether the drug Cal-de-ce was spurious or not, and hence there cannot be a bar for prosecuting the petitioners, merely because civil suits were pending. The remedy, sought in the writs, was also for cancellation of licence and hence even the pendency of WP. 1547/91 preferred by the respondent in this court, challenging the order of Drugs Controller, that Cal-de-ce manufactured by the petitioners was not a spurious drug, after the order in the Writ Appeal was handed over to him, cannot erase the pending prosecution.

8. I have carefully considered the rival contentions, urged by either counsel. The crux of the arguments centre on the question, if Ca-de-ce admittedly manufactured by the petitioners, would fall within the contemplation of section 17(B)(a) of the Act. Learned counsel for the petitioners, has not disputed the Cal-de ce medicine falls within the purview of Section 3(h)(ii) of the Act. Section 3(h)(ii) reads as follows:

“3(h) “patent or proprietary medicine” means, (ii) in relation to any other system of medicine, a drug which is a remedy or prescription presented in a form ready for internal or external administration of human beings or animals and which is not included in the edition of the Indian Pharmacopoeia for the time being or any other pharmacopoeia authorised in this behalf by the Central Government after consultation with the Drugs Technical Advisory Board constituted under section 51”.

9. On this basis, if we now turn to section 17B(a) of the Act, Cal-de-ce, which is a drug, shall have to be deemed to be spurious, if it is manufactured under a name which belongs to another drug. Section 3(h)(ii) in relation to any other system of medicine, other than mentioned in Section 3(h)(ii) of the Act, takes in its fold a drug, which is a remedy or prescription present in a form ready for internal or external administration of human beings or animals and which is not included in the edition of the Indian Pharmacopoeia for the time being or any other Pharmacopoeia authorised in this behalf by the Central Government, after consultation with the Drugs Technical Advisory Board constituted under section 51. Cal-de-ce is presented in a form ready for internal and external use of human beings and animals, and it is this drug, which the complainant claims, is being manufactured by the petitioners under a name which belongs to the drug manufactured by him, Prima facie it appears that the averments in the complaint taken at their face value, indicate the ingredients of an offence, punishable under section 17B(a) alleged against the petitioners. It is of course true, that the learned counsel for the petitioners, attempts to make a distinction between the trade name and the ingredients of the drug. Such a distinction can be appreciated only after sufficient evidence is brought on record. At this stage, It is very difficult for me, to agree that the name of the drug would only be the ingredients of the drug or the drug can be sold, without a trade name. I have already noticed that Cal-de-ce contains three different ingredients each one of which, could be a drug under the concerned definition in the Act. All that rule 124B read with Schedule V, 18(a)(iii) read with the rule 103(3) and again Rule 96(A) and (B) contemplate are the basic need, to stick to the standards of drugs and do proper labelling, showing the ingredients. The prescription of these Rules, will have to be complied with by every manufacturer and the respondent as a manufacturer of Cal-de-ce, will have to strictly comply with those provisions. However, the petitioner cannot claim, that merely because they have complied with the rules aforestated, they cannot be prosecuted under section 17(B)(a) of the Act, for then, the very purpose for which section 17(B)(a) was at into the statute book, would be thwarted. The reference to Iudian Pharmaceutical Guide and the Pharmacopoeia of India, cannot advauce the case of the petitioners at this stage, for consideration of this question can arise, only after sufficient evidence is brought on record and the petitioners succeed in establishing that Cal-de ce will not fall within the purview of section 17B(a) of the Act, as claimed by the respondent, and further the ingredients of Cal de-ce will only be relevant and not the name Cal-de-ce which should be merely treated as trade name.

10. I am unable to agree that under section 32 of the Act, the respondent will not be an aggrieved person and if the respondent company has to be treated as an aggrieved person, it must be equated to a Recognised Consumer Association. Section 32 uses the word “or” between an Inspector and the person aggrieved and a Recognised Consumer Association. Paragraph 10 of the complaint mentions how the respondent is an aggrieved person and prima facie, the trial Magistrate was justified in taking congnizance of the offence alleged, on the basis that the respondent was an aggrieved person.

11. However, as far as petitioner 2 to 6 and 8 to 14 are concerned, I will have to uphold the contention of Mr. Franco Louis section 34 of the Act, as far as it is relevant for our purpose, reads as follows:

“When 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.”

12. Proviso to the section is not relevant at this stage, for that would come into operation only after the initial onus contemplated under section 34(1) of the Act is discharged by the prosecution, at least prima facie, by making necessary averments in the complaint. Section 34(2) of Act does not come into operation at this stage, at least till the prosecution prima facie complies with its obligation under section 34(1) of the Act. The only relevant paragraph in the complaint, seeking to connect the directors of the companies is paragraph 11, which is extracted here under:

“11. Accused 1 is a company managed by accused 2 to 6 who are Directors incharge of the business of the company, Accused 8 to 14 are the directors of Accused-7 company. They are responsible to the A-7 company for the conduct of business of the Company. As such under section 34 of the Act, accused 2 to 6 and accused 8 to 14 are liable to be punished along wtih accused 1 aad 7. Accused-1 is the manufacturer of the Drug A-7 is stocking, selling and marketing in Madras and other places, drugs deemed to be spurious under section 17B of the Act.”

13. What section 34 of the Act contemplates is that, if the offender were to be 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, shall also be deemed to be vicariously liable. Vicarious liability can be fastened only after the prosecution prima facie succeeds in showing by the averments made in the complaint, that those persons sought to be prosecuted alongwith the companies, were not only in charge but were also responsible for the conduct of the business of the company. The word used is “and” and not “or”. It would be very difficult to agree with Mr. Somayaji that “and” will have to be read as or in catena of cases, the Apex Court has held that initiating prosecution against sleeping partners or women, when the company is the main offender, cannot be sustained unless there was basic material to show that such partners or directors were also in charge of and responsible for the conduct of the business of the company. Merely, by alleging that directors are in charge of the company, as is found in p???ragraph 11 of the complaint, petitioners 2 to 6 cannot be prosecuted. The complainant should further show that petitioners 2 to 6 were also responsible for the day-to-day conduct of the business of the company. Similarly, as far as petitioners 8 to 14 are c???ncerned, paragraph 11 reads that they were responsible for the business of the company, but does not allege that they were in charge of the company. A quick look at the law laid down by the Apex Court will be useful in this context. In Delhi Municipality v. Ram Kishan . AIR 1983 SC 67. the pronouncement reads as hereunder:

“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.”

14. In that case the averments in the complaint read as follows:

“That the accused No. 3 is the Manager, of accused No. 2 and accused Nos. 4 to 7 are the Directors of Accused No. 2 and as such they were in charge of and responsible for the conduct of business of accused No. 2 at the time of sampling”.

15. In Municipal Corporation of Delhi v. Purshotam Das . AIR 1983 SC 158., the Supreme Court stated thus, after axtracting the relevant para in the complaint:

“Complaint: That accused Ram Kishan Bajaj is the Chairman, accused R.P Neyotia is the Managing Direclor and accused 7 to 12 are the Directors of the Hindustan Sugar Mills Ltd. and were in charge of and responsible to it for the conduct of its business at the time of commission of offence.

Unlike the other case, para 5 of the complaint of this case gives complete details of the role played by the respondents and the extent of their liability. It is clearly mentioned that Ram Kishan Bajaj is the Chairman and R.P Nayotia is the Managing Director and respondents 7 to 11 are the directors of the Mill and were in charge of and responsible for the conduct of its business at the time of commission of the offence whereas in other case the complaint has merely drawn a presumption, without any averment. In the instant case, a clear averment has been made regarding the actual role played by the respondents and the extent of their liability. In this view of the matter it cannot be said that para 5 of the complaint is vague and does not implicate respondents 1 to 11.”

16. Thus it Is apparent that mere extraction of the section in the complaint would not suffice, and further vague allegations or assumptions, would not lead any where. The complaint must prima facie disclose, that there was any act committed by the Directors, from which a reasonable inference can be drawn of their vicarious liability. Looked at from any angle, on the averments available in the complaint, the pending prosecution cannot be maintained, in so far as it concerns petitioners 2 to 6 and 8 to 14. It may be, that petitioners 1 and 7 many have to be represented, by some person incharge of the respective companies. On that” score it would not be fair to sustain the prosecution against petitioners 2 to 6, and 8 to 14. It is quite true that civil litigation is pending in this court and also in the concerned court at Baroda. It appears that the suits do not mainly concern, with the decision if Cal-de-ce manufactured by the petitioners will be a spurious drug as contemplated under section 17B(a) of the Act and the writ petitions again deal with the need for cancellation of licence or other- wise. It is, of course, true that there is bound to be some overlapping, on the same set of facts, leading to a prosecution as well as challenge of a civil right. On that score, a prosecution cannot be quashed, as long as the court is not impelled to hold that initiation of this prosecution was intended to be an exercise in harrassment. At this stage, I am unable to conclude that initiation of this prosecution was totally aimed at harrassing the petitioners. I agree with Mr. Somayaji, that under section 17B(a) of the Act, a fiction and an artificial definition is created. There is no ambiguity in the language of the section. Learned counsel for the petitioners, wanted to rely upon certain documents to substantiate his contentions, but I did not permit him to do so, since documentary evidence is yet to come on record. Those documents will have to be placed before the trial court and an opportunity, afforded to the respondent to challenge the same. At this premature stage, it wiil be difficult to accede to the request of the learned counsel to peruse documents, which have not accompanied the complaint, or brought on record as exhibits in the Calendar Case. Petitioners 1 and 7 will be at liberty to urge before the trial Magistrate, that Cal-de-ce will not attract the provisions of section 17B(a) of the Act, since, as stated earlier, the said question will relate to the realm of appreciation of evidence, which is yet to be brought on record During the course of trial, if evidence is forthcoming, regarding involvement of one or more of the directors of those who have not been arrayed as accused, it will always be open to the trial Magistrate, to exercise his power under section 319 of the Criminal Procedure Code, which extraordinary power of course, can be utilised by sound exercise of judicial discretion, only if compelling reasons exist for taking cognizance.

17. In the result, this petition is dismissed in so far as it concerns petitioners 1 and 7 and allowed in so far as it relates to the petitioners 2 to 6 and 8 to 14.