@JUDGMENTTAG-ORDER
S.S. Parkar, J.@mdashAll the above Criminal Applications have been filed u/s 482 of the Cr.P.C. challenging the common order of conviction and sentence recorded u/s 18(c) read with Section 27(b)(ii) of the Drugs and Cosmetics Act. 1940 by the learned Metropolitan Magistrate''s 6th Court. Mazgaon, Bombay on 19.12.1990 and the notices and summons issued to the applicants by his order dated 28.1.1993 in C. C. No. 32/S of 1990.
2. The brief facts, leading to the above proceeding, are as follows: On 30.11.1990 Drug Inspector (Greater Bombay) filed complaint being C.C. No. 32/S of 1990 in the Metropolitan Magistrate''s 6th Court, Mazgaon, Bombay against seven accused for contravention of Section 18(c) of the Drugs and Cosmetics Act. 1940 punishable u/s 28(b)(11) of the said Act. A copy of the said complaint is annexed at Exhibit "A" to the petition. The allegations in the complaint were that the original accused Nos. 1 to G were partners of accused No. 7M/s. Ahmed S. Moloobhoy & Sons situated at Anchor House, 1st Quay Street. Darukhana, Mazgaon, Bombay 400 010. During the Inspection of the aforesaid Firm on 16.12.1989 the Drugs Inspector had noticed that the accused had sold Code in Sulphate Tablets and Compose Tablets to M/s. Marine Safety Services, 25-8-141, Main Road, Vishakhapatnam without holding requisite licence from the Drugs Authority In respect of the premises and, thus, there was contravention of Section 18(c) of the Act/The said tablets are Schedule "H" drugs as per Section 3(b) of Drugs and Cosmetics Act. 1940 and a licence in Form No. 20(B) and 20 is required for their sale by wholesale and retail respectively. After the said complaint was lodged in the Court at about 11.05 a.m. the learned Magistrate took cognizance of the same and passed order issuing process by 11.10 a.m. on that very day. The order, issuing process is quoted at page 29 of the paper book and reads as follows :
"Heard Shri A. P. Jatadhar, D. I. (Gr. Bombay) In person. Perused the Complaint and list of documents. No other document is filed alongwith complaint. Prima facie case made out. Issue process against all accused mentioned In complainant for offence u/s. 18(c) of the D. C. Act, 1940 punishable u/3. 27 of the D. C. Act. 1940. Sum. returnable on 18.12.90. Copies of complaint be furnished to all accused with Summons.
Sd/- 11.10 a.m.
S. P. Munghate
M. M. 6th Court, Mazgaon,
Bombay."
3. Pursuant to the aforesaid order summons were issued to all the accused which were served on the original accused No. 1 by name Adil S. Moloobhoy who was not challenged the order of conviction in this Court. On 18.12.1990. i.e. the first date, the accused No. 1 appeared in the Court and made application to the Trial Court that accused Nos. 2 to 6 i.e. the applicants in the above petitions had retired prior to the date of the incident and were not responsible for the business of accused No. 7 - Firm Ahmed S. Moloobhoy & Sons and, therefore, their names should be deleted. In the said application he had also expressed his desire to plead guilty on behalf of himself and the Firm being accused No. 7 both of whom have not challenged the order impugned herein. A copy of the said application is annexed at Exhibit "C" to the petition. The said application was resisted on behalf of the prosecution on the ground that the license Issued earlier shows the names of accused Nos. 2 to 6 even at the time of renewal in the year 1989 for 1990-91 by the application submitted on 4.12.1989. Thereafter the evidence of complainant was recorded. The charge was framed by the learned Magistrate against all the accused persons including the applicants herein on 19.12.1990 under the provision of Section 18(c) read with Section 27(b)(f) of the Act, a copy whereof is annexed at Exhibit "E" to the petition. To the charge framed against the accused, original accused-No. 1 Adil Moloobhoy pleaded guilty for himself and on behalf of all the partners and the Company which plea was recorded on 19.12.1990. This was followed by the impugned order passed on the same day, a copy whereof is annexed at Exhibit "G" to the petition. The order begins with the following sentences :
"Accused No. 1 pleads guilty for him and for other partner Nos. 2 to 6 and for Company. I accept his plea as it is voluntary ........."
Thereafter, the learned Magistrate proceeded to convict all the accused Nos. 1 to 7 for the aforesaid offences and sentenced them to suffer imprisonment till rising of the Court and to pay a fine of Rs. 350/- each in default to suffer R. I. for "days. The stock of drugs was ordered to be confiscated to the State.
4. In January, 1993 it was realised by the learned Magistrate that accused Nos. 2 to 6 were not present at the time when the order of conviction was passed and, therefore, did not undergo the sentence of imprisonment till rising of the Court though the fine was paid on behalf of all by the accused No. 1 who was present and pleaded guilty. The learned Magistrate, therefore, by his order passed on 28.1.1993 issued notices to the defence counsel to keep all the accused persons present and issued summons to accused Nos. 2 to 6 to remain present on or before 2.2.1993. It is the case of the applicants that even the subsequent summons were not served on any of the above applicants but those summons were received on their behalf by accused No. 1 Adil S. Moloobhoy who informed the present applicants asking them to remain present before the learned Magistrate. Thereafter the applicants applied for certified copy of the impugned order and then challenged the order of conviction as well as the subsequent order dated 28.1.1993 issuing summons to the applicants by filing the present petitions on 26th March, 1993. All these petitions were admitted and rule was Issued on 30th March, 1993 expediting the hearing thereof. This Court had also granted interim order staying the proceeding being C.C. No. 32/S of 1990 pending before the learned Metropolitan Magistrate''s 6th Court. Mazgaon, Bombay.
5. I have heard the learned counsel at length and went through the petitions as well as the exhibits annexed thereto. The applicants have also filed Deed of Partnership dated 22nd July, 1987 at Exhibit" J" to Criminal Application No. 766 of 1993. The said Deed of Partnership at Exhibit "J" does not show the name of the applicant in Cri. Application No. 766 of 1993 as being one of the partners of the firm of M/s. Ahmed S. Moloobhoy & Sons. The applicant has produced the income tax return at Exhibit "K" which also does not show the name of the applicant in Cri. Application No. 766/93 as the partner of the said firm. As against that, in the subsequent petitions, the applicants have annexed a copy of Deed of Retirement from the aforesaid partnership at Exhibit "J". The said Deed of Retirement is dated 23rd October, 1987 under which the applicants in the other four petitions have retired from the partnership firm. These facts have not been challenged on behalf of the prosecution by filing return to these petitions though the matters were admitted as far back as 30th March, 1993. Even across the bar the learned A.P.P. does not dispute the said position that applicant in Cri. Application No. 766/93 was never partner to the accused No. 7 -partnership firm and that the other applicants had retired on 23rd October, 1987 as per the Deed of Retirement annexed at Exhibit "J" to the other petitions.
6. In view of the aforesaid facts, the learned counsel Mr. Shore rightly challenged the impugned order convicting the applicants herein for the offence u/s 18(c) read with Section 27(b)(ii) of the Drugs and Cosmetics Act, 1940. Mr. Shore also relies on Section 34 of the Act relating to the offences by Companies and contends that otherwise also unless the partners are shown to be in charge of, and were responsible to the firm for the conduct of the business of the firm, they shall not be deemed to be guilty to the offence and, therefore, cannot be liable to be proceeded against and punished under the provision of the said Act. He also contended that by virtue of Explanations (a) and (b) to Section 34, the provision of Section 34 would be applicable to the partnership firm and the partners. Mr. Shore also challenged the Impugned order of conviction on the ground that the summons were not served personally on the applicants as required u/s 62(2) and (3) of the Cr. P. C. He relies on the recent decision of the Supreme Court in the case of Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors., in which it is observed by the Supreme Court that the issuing of summons against the accused without applying mind to the facts of the case and without examining if any prima facie case is made out against any of the accused is Illegal.
7. In my view, the present petitions can be allowed, inter alia, on the ground that none of the applicants could have been proceeded against or held guilty for the aforesaid offences as they were not partners on the relevant date i.e. 20.10.1989 when the alleged offence is said to have been committed. It Is not disputed in this Court on behalf of the prosecution that applicant in Cri. Application No. 766/93 was never a partner in the firm of M/s. Ahmed S. Moloobhoy & Sons and secondly the applicants in the other four petitions had ceased to be partners of the said firm before the date of the offences as the applicant in Cri. Application No. 767/93 retired from the said partnership on 23.10.1987 while the other three applicants had retired from the partnership on 24.7.1987. In view of the aforesaid position, the question of these applicants being in charge of and responsible to the firm for the conduct of the business of the firm on the date of offence does not at all arise in this case. The Impugned order would not have been passed by the learned Magistrate against any of these applicants if he had taken care to satisfy himself whether the applicants were served as per the requirement of law or not and secondly, had tried to ascertain whether they were partners of the firm on the date of the alleged offence i.e. 20.10.1989. No doubt, the learned Magistrate in this case, to say the least, had shown undue haste at the first instant in Issuing process against all the accused persons. One is at a loss to know as to how the prosecuting agency impleaded applicant in Cri; Application No. 766/93 as one of the accused when she was never a partner in the partnership firm of accused No. 7 and secondly on what basis the learned Magistrate proceeded to issue process against the said applicant. The record shows that the complaint was presented to the learned Magistrate at 11.05 a.m. on 30.11.1990 and the process has Issued within five minutes of the presentation of the complaint at 11.10 a.m. on that very day. This speaks about the undue haste on the part of the learned Magistrate in Issuing process without satisfying himself about the facts. Secondly, the learned Magistrate proceeds against all the accused persons although accused Nos. 2 to 6 were not personally served as per the mandate of section 62(2) and (3) of the Cr.P.C. Thirdly, after the original accused No. 1 Adil Moloobhoy remains present on the returnable date i.e. 18.12.1990 and presents his application stating that accused Nos. 2 to 6 i.e. these applicants had retired from the partnership, the learned Magistrate does not ascertain the said fact by asking the parties to produce the documentary evidence and proceeds to record the evidence of the prosecuting witness on the same day on the following day i.e. 19.12.90 recorded the plea of guilt of original accused No. 1 surprisingly on behalf of all the accused persons and passed the Impugned order of conviction. The learned Magistrate did not realise the grave mistake he had committed at earlier stages and proceeded to pass further order on 28.1.1993 calling upon the absent accused who were convicted by his earlier order dated 19.12.1990 to remain present in Court on 2.2.1993 in order to undergo imprisonment till rising of the Court, though in the order of 28.1.1993 he observes that the prosecution was not so serious considering the gravity of the offence. The aforesaid facts amply evince the lack of seriousness displayed by the learned Magistrate himself before proceeding to pass the two impugned orders dated 19.12.1990 and 28.1.1993.
8. From the record and proceeding received in this Court, Mr. Shore has brought to my notice the fact that the vakalatnama was signed only by original accused No. 1 Adil Moloobhoy in favour of his Advocate H.R. Mulani and no other accused had signed the vakalatnama. The learned Magistrate while passing the subsequent order dated 28.1.1993 issues notice to the said Advocate Mulani to keep the applicants-accused present in the Court as if he was representing all the accused including these applicants. In my opinion, there could not have been greater display of irresponsibility on the part of the learned Magistrate than shown while passing the aforesaid two orders.
9. The impugned orders dated 19.12.1990 and 28.1.1993 passed by the learned Metropolitan Magistrate are fraught with still more glaring Instances of disregard of the procedure established by law. u/s 246(2) of the Cr.P.C. if the accused is not discharged u/s 245 the charge has to be read out and explained to the accused and then he has to be asked whether he pleads guilty or has any defence to make. The record shows that the charge was not read out to any of these applicants. Secondly, under sub-section 3 of Section 246. if the accused pleads guilty, the Magistrate has to record the plea and then proceed to convict him. It is elementary that none of the applicants being present in the Court, could not have pleaded guilty. The learned Magistrate instead accepts the plea of guilt made by accused No. 1 allegedly on behalf of the absent accused who were not even served with the summons. The learned Magistrate has also contravened the provision of Section 273 of the Cr.P.C. which mandates that all evidence shall be taken in the course of the trial in the presence of the accused unless his personal attendance is dispensed with in which case it may be recorded in the presence of his pleader. As pointed out earlier, Advocate Mulani had filed vakalatnama on behalf of accused No. 1 only and not on behalf of any of the above applicants and none of the applicants were exempted from appearing personally. u/s 248(3) of the Cr.P.C. where the Magistrate finds the accused guilty, he is required to hear the accused on the question of sentence before passing sentence upon him according to law. This provision also was contravened by the learned Magistrate as none of the applicants were heard. Mr. Shore also points out to me that the learned Magistrate did not give copy of the order of conviction and sentence recorded against the applicants to them after the pronouncement of the judgment as required to be given to the accused Immediately and free of cost u/s 363(1) of the Cr.P.C. Lastly, the learned Magistrate wrongly invoked Section 464 of the Cr.P.C. to recall the accused persons to undergo the sentence of imprisonment till rising of the Court illegally passed by him on 19.12.1990. Under the said provision no finding, sentence or order passed by a Court of competent jurisdiction can be invalidated merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge Including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has In fact been occasioned thereby. Reading of Section 464 of the Cr.P.C. would show that invocation of the said provision for the purpose for which the learned Magistrate had used in his order dated 28.1.1993 was absolutely irrelevant. In fact, that was a blessing in disguise to the applicants which gave them an opportunity to challenge the earlier order of conviction illegally passed by him.
10. The net result of the above irregularities committed by the learned Magistrate was to record an illegal order of conviction against the applicants which has naturally and consequently resulted in injustice to the applicants. The aforesaid facts leave no alternative but to quash and set aside both the orders dated 19.12.1990 and 28.1.1993 passed by the learned Metropolitan Magistrate presiding in the 6th Court. Mazgaon, Bombay, and acquit the applicants.
11. In the result, the rule is made absolute in terms of prayer clause (b)(1) and (ii) of the petitions. All the applicants are acquitted. They are entitled for the refund of the amount of fine paid by them.
