No vicarious liability under criminal law unless strictly mandated by law: J&K&L High Court

The High Court of Jammu and Kashmir and Ladakh ruled on Friday that in criminal law there is no concept of vicarious criminal liability and that is only if there is a law which renders a person vicariously liable for the acts of another person that such person may be prosecuted for a criminal offence.

The bench comprising Judge Sanjay Dhar was judging two pleas through which the petitioners challenged a complaint filed by the respondent drug control officer alleging the commission of offenses under section 18(a)(i) read with section 17 ( B) (d), 27 (c), 36-AB, 124B and Schedule V S. No. 3 of the Medicines and Cosmetics Act of 1940 and the rules thereunder.

In their pleadings, the main ground relied upon by the petitioners to contest the contested complaint was that there was no allegation in the contested complaint to show that the petitioners were the persons responsible for the conduct of the day-to-day affairs of the company in question. , at the relevant time.

Review of the record revealed that the Respondent Drug Control Officer had filed the impugned complaint against the Petitioners and Co-Defendants in the Shopian Chief Judicial Magistrate’s Court, in which it was alleged that during a surprise inspection of premises of the co-accused, Shahnawaz Ahmad Khanday, who is said to be the owner of a drug, a sample of the drug Biocenac-P was taken from his store and the said sample, after analysis by the government analyst, was found to be of non-standard quality. The filing further disclosed that during the investigation it was discovered that the drug in question was manufactured by M/S Adwin Pharma Village Rampur District Sirmour, Himachal Pradesh and the petitioners here happened to be the partners of the manufacturing company.

The bench also took note that at the request of the manufacturing company, the sample under the direction of the Chief Judicial Magistrate, Shopian, was sent to the Central Drugs Laboratory, Kolkata, for further analysis, after what this new analysis was done by Central Drugs Laboratory, Kolkata reported that the sample was not of standard quality. Accordingly, the prosecution was initiated against the plaintiffs and other co-defendants who happen to be the distributors and retailers of the drug in question.

Dealing with the principal argument of the applicants in these two applications according to which the company, of which they happen to be partners, had not been implicated as a defendant in the complaint in dispute and, as such, no suit cannot be brought against its associates, the bench section 34 of the Drugs and Cosmetics Act is amply clear that where an offense has been committed by a company, any person who at the time the offense has was committed, was responsible and was liable to the company for the conduct of the affairs of the company and the company are deemed to be guilty of the offence. The provision extends the concept of vicarious liability to persons responsible for the conduct of the company’s affairs in a case where the offense was committed by the company, the bench pointed out.

The court further observed that in criminal law there is no concept of criminal liability and that it is only if there is a law which makes a person vicariously liable that such liability can be engaged.

One such example is the provision contained in Section 34 of the Medicines and Cosmetics Act that persons in charge and responsible for the conduct of company affairs are held vicariously liable for offenses committed. by the company. However, said provision specifies that not only these persons, but even the company, would be deemed guilty of the offence. Judge Dhar recorded.

Deliberating further on the position of the law on the subject, the court observed that the proviso of paragraph (2) of section 34 of the law further provides that where an offense has been committed by the company and that it is proved that the said offense has been committed with the consent or connivance or is attributable to the negligence on the part of a director, director, secretary or other officer of the company, they shall be deemed guilty of this offence. Thus, even if the aforementioned officers of the company are not responsible for the conduct of the affairs of the company or even if they are not in charge of the company, these officers may nevertheless be deemed guilty of the offense, Justice Dhar observed.

In the present complaint, there was no allegation that the petitioners are in charge or responsible for the conduct of the day-to-day affairs of the partnership business. Thus, it was held that the pursuit of criminal proceedings against the applicants on the basis of the disputed complaint would constitute an abuse of process.

Deal Title: Ashish Damija Vs UT of J&K

Citation: 2022 LiveLaw (JKL) 90

Click here to read/download the order