This is an appeal by Shib Sankar Nag Sarkar and Angshuman De for setting aside the penalty imposed on them by the Competition Commission of India (for short, the Commission) under Section 27 of the Competition Act, 2002 (for short, the Act) in Suo-Moto Case Number 2 of 2012 and Reference Case Number 1 of 2013.

One Shri Arun Kumar Singh claiming himself to be a member and an office-bearer of the All India Drug Action Network sent an e-mail dated 28.08.2012 to the Commission alleging that the Bengal Chemist and Druggists Association (BCDA) is engaged in anti-competitive practices inasmuch as it has been directly or indirectly determining the sale price of the drugs and controlling the supply of drugs in a concerted manner in violation of Sections 3(3)(a) and 3(3)(b) of the Act.

The Commission suo-moto took cognizance of the allegations and passed an order dated 11.10.2012 under Section 26(1) of the Act whereby the Director General (DG) was directed to cause an investigation to be made into the matter.

The Additional Director General (for short Addl.

DG), to whom the case appears to have been entrusted, issued notices under Section 41(2) read with Section 36(2) of the Act to BCDA, Director, Directorate of Drugs Control, West Bengal and 12 retailers of drugs who were opposing the directives given by BCDA on the issue of discounts to elicit their response qua the allegations of anticompetitive activities of BCDA.

The Addl.

DG also recorded the statements of eight persons including Honorary General Secretary of BCDA and submitted report dated 29.05.2013.

In paragraphs 16 and 17 of the report, the Addl.

DG extensively referred to the stand taken by BCDA, the minutes of various meetings of the Executive Committee held between 2011 and 2013.

The Addl.

DG then referred to the statements of Shri Tushar Chakraborti and the representatives of various suppliers retailers and recorded the following conclusions: 23.4 Be as it may, the activities of trade association, inter alia, to direct its members to sell drugs only at their MRP is a palpable anti competitive conduct which cannot be justified on the ground that most of the members of the BCDA, would be ruined if competitive forces are allowed to operate in the market.

Further, the attempt to justify sale of drugs only on MRP on the basis that the margins have been fixed under the DPCO and accepted in the market is untenable as the issue is not the reasonability or the quantum of trade margins but the concerted action to fix uniform trade margin by an agreement amongst the members of the trade association.

The activities of the BCDA are in conflict with the objects of the competition law as they cause restraint of trade, stifle competition and harm the consumers.

23.5 In view of the above, it is stated that the BCDA and its District and Zonal Committees were engaged in anti competitive practices of directly or indirectly determining the sale prices of drugs and controlling or limiting the supply of drugs through concerted and restrictive practices, in violation of the provisions of clause (a) and (b) of sub-section (3) read with sub-section (1) of section 3 of the Act.

The report of the Addl.

DG was considered by the Commission in its ordinary meeting held on 18.06.2013 and it was decided to direct an investigation into the role of the individual office-bearers of the Managing Committee Executive Committee of BCDA in decision-making in terms of Section 48(2) of the Act.

The decision taken by the Commission reads as under: COMPETITION COMMISSION OF INDIA 18th June, 2013 In Re : Bengal Chemist Druggist Association Suo-Moto Case Number 02/2012 ORDER The matter was taken up by the Commission.

It is observed that DG has not investigated the role of individual office bearers of the Managing Committee Executive Body of the Association in decision making in terms of Section 48(2) of the Competition Act.

DG is directed to issue notices to the office bearer of the Managing Committee Executive Committee of Bengal Chemists and Druggists Association and give them a hearing to ascertain the role of the office bearers in the decision making in respect of practices circulars directions etc.

which were found anti-competitive.

DG shall submit his report within 30 days.

The notice to the informant be sent for hearing on his appeal against dismissal of confidentiality application by DG.

The matter be listed for hearing on 4th July, 2013 on confidentiality issue.

In compliance of the direction given by the Commission, the Joint Director General (Jt. DG), to whom the matter appears to have been transferred, issued notices to the appellants, the office-bearers and other members of the Managing Committee and the Executive Committee of BCDA under Section 41(2) read with Section 36(2) of the Act requiring them to produce evidence to prove that the contravention of the provisions of the Act had been committed by BCDA without their knowledge or that they had exercised due diligence to prevent the commission of such contravention.

For the sake of reference, notice dated 03.07.2013 issued to Appellant Number 1 is reproduced below: Office of the Director General Competition Commission of India B Wing, HUDCO Vishala, 14 Bhikaji Cama Place, New Delhi - 110 066.

No. DG CCI IW/1/12/2012 Dated : 03.07.2013 By Speed Post To, Shri Shibshankar Nag Sarkar/2537 C. Member C o Nag Pharmacy 53/2, T.D. Banerjee Road, Saktinagar, Nadia - 741102.

: Notice under Section 41(2) read with Section 36(2) of the Competition Act, 2002.

Ref.: Order dated 18.06.2013 of the Competition Commission of India (Copy enclosed).

Whereas this office was assigned investigation of Suo-moto Case Number 02 of 2012 and Case Number 01 of 2012 (Filed by the Directorate of Drugs Control, West Bengal) having identical issues, both against the Bengal Chemists and Druggists Association (BCDA), and Whereas, after investigation, this office has come to the conclusion that Bengal Chemists and Druggists Association, Kolkata, was guilty of violation of the provisions of Clauses (a) and (b) of sub-section (3), read with sub- section (1), of Section 3 of the Competition Act, 2002, by indulging in concerted decision of restraining sale of drugs and medicines below MRP and by enforcing compliance of the above anti competitive decisions, and Whereas the Commission, on examination of the Investigation Report, vide its order dated 18.06.2013, has directed the Director General to investigate the role of individual office bearers of the Managing Committee Executive Committee of the Bengal Chemists Druggists Association in decision making in terms of Section 48(2) of the Competition Act, and Whereas being a member of the Executive Committee of BCDA, you were ostensibly a party to the decisions of BCDA resulting into anti competitive conduct.

Now, therefore, in compliance with the provisions of the proviso to Section 48(1), you are hereby given an opportunity to give evidence to prove that the contravention by BCDA was committed without your knowledge or that you had exercised all due diligence to prevent the commission of such contravention.

Your reply to this notice on affidavit and the documents evidences witnesses you intend to examine, if any, should reach this office by 19.07.2013.

In case you wish to be heard in person in the matter, you may intimate this office by 15.07.2013 alongwith your contract telephone fax mobile number.

(Manoj Saksena) Joint Director General Emphasis supplied 6 .

On receipt of the aforesaid notices, the appellants submitted applications dated 19.07.2013 with the request that copy of the investigation report be supplied to them for the purpose of filing their response.

The request of the appellants and others was placed before the Commission which decided not to entertain the same at that stage.

The decision of the Commission was communicated to the appellants and others by the Jt.

DG vide letters dated 07.08.2013.

The one addressed to Appellant Number 2 is reproduced below: Office of the Director General Competition Commission of India B Wing, HUDCO Vishala, 14 Bhikaji Cama Place, New Delhi - 110 066.

No. DG CCI IW/1/12/2012 Dated : 07.08.2013 By Speed Post To, Shri Angshuman Dey/2753 C. Member C o Jnananda Pharmacy 34-N, H. Birpur More Bethuadahari Nadia - 741126.

Ref. : Your letter dated 19.07.2013, in response to this office Notice dated 03.07.2013 issued under Section 41(2) read with Section 36(2) of the Competition Act, 2002.

In paragraph 1 of your above mentioned letter, in reference to Case Number 01 of 2012, it may be noted that the Case No may be read as 01 of 2013 instead of 01 of 2012, as appearing in the notice.

In so far as providing a copy of the complaint and other details of the said case filed by the Directorate of Drug Control, West Bengal, you may obtain the same by making an application to the Secretary, Competition Commission of India, Hindustan Times House, 18-20, Kasturba Gandhi Marg, New Delhi - 110001.

As regards your request for copy of the Investigation Report in Suo Moto Case Number 02/2012, your request has been considered by the Commission and this is to inform you that the said Report cannot be provided to you at this stage.

As such, you are hereby directed to file reply to the aforementioned notice, in compliance of the provisions of the Act.

With regard to the instances of violation contravention of the Competition Act, being an office bearer Executive Committee member of BCDA, and being present in the various meetings of the Executive Committee of BCDA, you were a party to the decisions of BCDA as reflected in the Minutes of the said meetings held from time to time wherein concerted decisions were taken for restraining sale of drugs and medicines below MRP in contravention of Section 3(3)(a) read with section 3(1) of the Act.

Further, enforcing compliance of the above anti competitive decisions, has led to limiting and controlling the supply of drugs medicines, thereby contravening the provisions of Section 3(3)(b) read with section 3(1) of the Act.

Minutes of the meetings held on 24.03.2011, 21.04.2011, 26.05.2011, 08.11.2011, 10.12.2011, 11.01.2012, 17.02.2012, 17.03.2012, 10.04.2012, 19.05.2012, 23.06.2012, 31.07.2012, 18.08.2012, 25.08.2012, 24.11.2012 and 21.12.2012, may be referred to as some of the instances.

In view of the above, you are once again directed to file your reply to this office notice dated 03.07.2013 at the earliest but not later than 20.08.2013 failing which it will be presumed that you have nothing to say in the matter.

(Manoj Saksena) Joint Director General 7 .

One Shri Swapan Kumar Karak, who was one of the Directors of BCDA but had resigned from that position on 25.09.2011, submitted reply dated 15.07.2013 stating that he was not a party to the decisions taken by BCDA to fix the price of drugs and impose restriction on retailers against the sale of drugs at a price lower than the Maximum Retail Price (MRP).

However, without taking cognisance of his reply and the fact that he had not even asked for copy of the main investigation report, the Jt.

DG sent communication dated 07.08.2013 to him conveying that his request for supply of copy of the main investigation report was declined by the Commission.

After completing the exercise of issuing notices letters to the office-bearers of BCDA and members of the Executive Committee, the Jt.

DG submitted supplementary investigation report dated 27.09.2013.

He reproduced the resolutions passed by the Executive Committee in its meetings held on 24.03.2011, 21.04.2011, 26.05.2011, 08.11.2011, 10.12.2011, 11.01.2012, 17.02.2012, 17.03.2012, 10.04.2012, 19.05.2012, 23.06.2012, 21.12.2012, 23.02.2013, 20.04.2013 and concluded that the anti-competitive decisions were taken ratified by the office-bearers and members of the Executive Committee in the meetings held from time to time.

The relevant portions of the supplementary investigation report are extracted below: In response to the Notices sent to the aforementioned Office Bearers Executive Committee members, responses were received from 78 out of the 81 members on different dates.

As per the responses received, the Office Bearers Executive Committee members stated that in the absence of the Investigation Report and details regarding the specific instances of violation found, it was not possible for them to respond to the notice and requested that a copy of the Report may be provided to them in order to enable them to file their reply.

It was further requested that copy of the complaint other relevant details with respect to the other identical Case Number 1/2013 may also be provided to them.

One of the Office Bearers has in his reply claimed that he had resigned from the Executive Committee on 25.09.2011 and requested that he may be exempted from further proceedings.

In view of the above, directions of the Commission were sought in the matter and as per the directions received vide Order dated 25.07.2013 of the Commission, it was informed to the parties that Investigation Report cannot be provided to them at the present stage of investigations and the parties were directed to file reply to the notices sent to them as per the provisions of the Act.

In so far as the request of the parties for being apprised about the specific instances of violation contravention of the Competition Act, their attention was drawn to the Minutes of the various Executive Committee meetings attended by them alongwith the specific dates of the said Meetings wherein anti competitive decisions were taken deliberations were held.

Notices sent to the parties in response to their replies are enclosed as Annexure III (Colly.).

Regarding the request for being provided copy of the information Complaint filed against the Association in the other identical Case Number 1/2013, the parties were informed that the same could be obtained by them by making an Applicant to the Secretary, CCI.

In response to the said Notices sent to the Office Bearers and Executive Committee members directing them to file their replies, responses have been received from 61 Office Bearers and Executive Committee members till filing of this report while one Notice has been returned undelivered.

The parties who have responded have reiterated their earlier request for being provided with the Investigation Report to enable them to file their replies and contended that denial of the same would amount to violation of the principles of natural justice.

One of the parties has reiterated its earlier contention of having resigned from the Executive Committee of BCDA on 25/09/2011.

The parties have also sought clarification as to whether the investigation regarding determination of their role was being undertaken in terms of Section 48(2) of the Act as had been directed by the Commission, or, in terms of Section 48(1) since the opportunity to give evidence to prove that the contravention by Bengal Chemists Druggists Association, was committed without their knowledge or that they had exercised all due diligence to prevent the commission of such contravention was being granted to them in terms of the proviso to Section 48(1) of the Act.

Copies of the responses received from the parties are enclosed as Annexure IV (Colly.).

In view of the above, and the inability expressed by the Office Bearers Executive Committee Members to file their replies in the absence of the Investigation Report inspite of having been intimated the specific dates of the Executive Committee Meetings attended by them wherein anti competitive deliberations were held and decisions were taken, investigation has determined the role of the Office Bearers and Executive Committee members with respect to the anti competitive conduct of Bengal Chemists and Druggists Association based on documentary evidences in the form of Minutes of the Executive Committee meetings held from time to time which had been attended by the Office Bearers and Executive Committee members of the said Association.

Further, considering that the provisions of Section 48(1) 48(2) of the Act are with reference to the Penalty proceedings under Chapter VI of the Act, investigation is of the view that only after the Commission has concurred with the findings of the investigation and concluded that contravention of the Act has been committed by Bengal Chemists and Druggists Association, an opportunity in terms of the proviso to Section 48(1) of the Act can be granted to the Office Bearers Executive Committee members whose complicity in the anti competitive conduct of the said Association has been established during the course of investigation proceedings.

In the matter of contravention of the provisions of the Act by Bengal Chemists and Druggists Association, investigation has in its Report dated 29.05.2013 deliberated in detail about the proceedings of the various Executive Committee meetings of Bengal Chemists and Druggists Association attended by its various Office Bearers Executive Committee members wherein anti competitive decisions were taken ratified by the members present in the meetings.

The relevant extracts of the Investigation Report dated 29th May 2013 with respect to each of the said meetings wherein decisions were taken deliberations were held resulting in anti competitive practices being carried on by Bengal Chemists and Druggists Association, are reproduced hereunder: Executive Committee meeting held on 24.03.2011 xxx xxx Executive Committee meeting held on 21.04.2011 xxx xxx Executive Committee meeting held on 26.05.2011 xxx xxx Executive Committee meeting held on 08.11.2011 xxx xxx Executive Committee meeting held on 10.12.2011 xxx xxx Executive Committee meeting held on 11.01.2012 xxx xxx Executive Committee meeting held on 17.02.2012 The Agenda Number 5 for the meeting dated 17.02.2012 of the Executive Committee, was To discuss about uniformity of retail prices and the role of the Organization in this regard.

In this meeting, the Organizing Secretary proposed the formation of Action Committee in order to arrest under cut in retail level.

It has also been mentioned that a meeting was held with Life and Metro and it was observed that they were very audacious as to give more discount.

It has been mentioned that Metro Pharma and Life has been giving exorbitant discount which, in turn, is damaging the discipline of the trade.

It was also assured that North Calcutta District Committee would participate organizational programmes as decided by the State Executive Committee.

The General Secretary has appreciated the endeavour of North Calcutta District Committee in keeping a close vigil on M section Life.

He has proposed taking strong decision not only against M section Life but also against Frank Ross, Dhanwantary, Medplus etc.

It was further stated that launching of organizational movement at any Zone District is to be intimated to the State Committee.

It was also mentioned that the undercut problem is centered in Kolkata and its surrounding Districts only.

Executive Committee meeting held on 17.03.2012 Under Agenda Number 4, the Organizing Secretary has reported that the undercut problem has been concentrated upon in the two meetings of the Action Committee and another meeting with the District Organizing Secretaries.

He has also proposed about the programme of 1st April 2012 to sell medicines from the retail outlet on MRP basis, and on 18th April 2012, to organize a protest profession against entry of big national proposal.

The Organizing Secretary also stated that the state leadership is very rigid to prevent undercut.

He has stated as follows : We should move forward to prevent under cut.

The Organizational Vigilance committee will keep close watch.

Organizational movement against a few non cooperative members must be initiated.

We will move from 1st April 2012.

One member stated that supplies to non cooperating members are to be restricted while another member urged for concrete decision and stressed organizational movement against non cooperating members and that the District Committees must take drive against under cut.

Similarly, a member proposed to identify the members in the Zone who are giving discount.

Another member stated that on 10th March meeting.

20 Districts representatives have agreed to prevent the undercut and that against under cut a clear directive is necessary from the State Committee.

It was further stated that if any stockiest supplies to any non cooperative member from South Calcutta.

Action Committee can take any action as they like.

Thereafter, the President announced that from 1st April 2012, sale of medicine on MRP would be implemented and Organizational Vigilance Committee would be formed at Zone level at the earliest to ensure is proper implementation and that the State Organizing Secretary will oversee the entire process.

The House unanimously approved this programme.

Executive Committee meeting held on 10.04.2012 Under Agenda Number 5, the Organizing Secretary has reported that on the basis of the information available, the activities for the programme on 18th are in progress.

He has further mentioned about the movement against under cut from 1st April 2012.

He has also stated that a meeting with the vigilance committee members will be held to get them acquainted with the Zone District areas and that efforts should be made on postering, distribution of leaflets and propaganda etc.

The Organizing Secretary has also stated that the suppliers to M section Life and Medplus would be called for a meeting.

In this meeting, the General Secretary has proposed for organizational movement against M section Life with immediate effect and to talk to Metro Pharma and launch protest against them for giving discount.

The Office Bearers were empowered to take decision regarding withdrawal of organizational movement.

The House approved the proposal.

Executive Committee meeting held on 19.05.2012 Under Agenda Number 5, the Organizing Secretary stated that as per the recommendation of East Calcutta District Committee, organizational movement should be implemented against M section Charu Medical Stores and M section Charu Marketing Agency for giving discount.

One member also reported that by vigilance drive both Charus have been caught.

Another member has stated that both the Charus have been told not to give discount.

The Organizing Secretary has mentioned that 1st April 2012 programme is on undercut and that their policy is faced with a problem created by M section Life Line, Medplus, Dhanwantary.

He has also stated that this problem is mainly centered in Kolkata Districts.

The General Secretary also requested the members to strictly follow the organizational movement on Life Line and others.

One member stated that they should collect the information as to who purchase medicines from M section Life and who are supplying medicines to Medplus.

Another member stated that when chain stores are giving discount what will they reply to other retailers.

The said member also stated that Dhanwantary has taken the Hospital supply with discount and proposed for organizational movement against Dhanwantary.

It was also proposed by a member that the State committee should call the chain stores representatives and sit with them to persuade them to stop undercut.

Vigilance teams were also proposed to be detailed in front of SSKM Hospital and CMRI.

The Organizing Secretary proposed to write a letter to Medplus and other chain stores to honour the guideline of BCDA.

He also proposed to call the Calcutta Wholesale EC body in BCDA.

The General Secretary proposed the Organizing Secretary to call all the EC members of Calcutta Wholesale in BCDA within a short time.

He further proposed that the vigilance activities in Districts will be organized.

The House approved the above proposals.

Executive Committee meeting held on 23.06.2012 The Agenda Number 3 for the meeting dated 23.06.2012 of the Executive Committee was To discuss about the action plan on Trade Policy.

In this meeting, the General Secretary has referred about State Committees programme to stop discount from 1st April, 2012.

It has also been mentioned that in the meeting with Life Line on 12.06.2012, the company has agreed to stop discount with immediate effect and as a result, the organizational movement has been withdrawn against Life Line.

The Organizing Secretary has reported that Kolkata and other District Committees have stopped the discount.

Life Line has stopped discount and that some members have been cautioned by BCDA Vigilance.

He has also mentioned that Shyambazar Zone under North Calcutta is still giving discount and that M section Jitendra Mohan should be penalized.

One member has stated that discount is going to start again which is very painful to BCDA members.

He emphasized that discount in Shyambazar Zone must be stopped for which he proposed to call the members of Shyambazar Zone on 25th June 2012 in State Office to persuade them to stop the discount.

One member has stated that they have been activating the Zone Vigilance Committee continuously and are in constant touch with the Zone Vigilance Committee to implement the BCDA directive.

Another member has stated that they have been able to convince the retailer members against discount and has noted that East Calcutta is very rigid.

One member has stated that Canning Zone is very adamant and anti-propaganda against BCDA has been made.

He has also mentioned that the State Vigilance Committee has been asked to intervene in the case of Mandai Pharmacy.

He has however observed that the overall picture of the District Vigilance is good.

One of the member has said that during a visit to the Shyambazar 5-Point crossing, it has been found that 3-4 shops have given discount including Frank Ross.

He proposed that the State Committee should sit with the shop owners of Shyambazar Zone and persuade them to stop discount.

Thereafter, the President directed that, as proposed, the retail shop owners of Shyambazar Zone would be called for a meeting on Monday the 25th June, 2012 in BCDA Office.

One member complained that the root cause of undercut problem in South Calcutta is Dhanwantary and has sought the intervention of the State Committee in the matter.

Another member has stated that undercut is prevailing at Baranagar and Dum Dum Zone and that the 24 Parganas North District Committee has been in constant touch with them.

Another member has complained that North Calcutta is not taking any fine from the shops who are giving discount.

The Organizing Secretary has mentioned that they have taken necessary steps for implementation of trade policy.

He also stated that discount is going on in Kolkata and surrounding Districts and recommended to continue vigilance operation in very rigid manner.

He also reported that the Calcutta Wholesale EC Committee has assured to stop under cut.

One member stated that Dhanwantary, Chemist Corner, Medplus etc. were the first to introduce discount system in the trade and that they are to be caught through vigilance operation.

Another member stated that the new traders coming in this trade are giving discount and suggested to sit with them.

He also proposed that the supply point to Medplus and others is to be detected first and to take extreme measures against those who are caught.

He also proposed that M section Jatindra Mohan is to be caught.

General Secretary concluded the agenda stating that based on the discussions held, Calcutta Coordination Committee and Action Committee will decide the names of the firm against whom action is to be taken and that the interests of wholesalers and sub- wholesalers are to be safeguarded.

Executive Committee meeting held on 31.07.2012 xxx xxx Executive Committee meeting held on 25.08.2012 xxx xxx Executive Committee meeting held on 24.11.2012 xxx xxx Executive Committee meeting held on 21.12.2012 xxx xxx Executive Committee meeting held on 23.02.2013 xxx xxx Executive Committee meeting held on 20.04.2013 In the minutes of the Executive Committee meeting dated 20.04.2013, under Agenda Number 5, it has been resolved that Bengal Chemists Druggists Association shall not initiate any organizational movement, like in earlier times also, against any wholesaler retailer offering discounts below the MRP.

As can be seen from the above, anti competitive decisions were taken ratified by the Office Bearers Executive Committee members of Bengal Chemists and Druggists Association in the Executive Committee meetings of the Association held from time to time and the Minutes of the meeting held on 20.04.2013 is an admission of the complicity of the members in the anticompetitive conduct of the Association.

xxx xxx CONCLUSION In view of the above, it is concluded that besides the Bengal Chemists and Druggists Association, its Office Bearers Executive Committee members listed above at Serial Numbers 1 to 80 have, by taking decisions and perpetuating practices of the Association that have been found to be anti- competitive, are equally complicit in the said decisions and practices.

(Underlining is ours) 9 .

It is borne out from the record that Shri Arun Kumar Singh had made similar complaints to the Director, Directorate of Drug Control, West Bengal vide e-mails dated 24.06.2012 and 27.06.2012.

Thereupon, Respondent Number 3, who was then holding the post of the Director, constituted a team for verifying the allegations contained in the e-mails.

The team visited the medical shops in Chinsurah and Serampur on 18.10.2012 and Howrah and Kolkata on 08.11.2012 and submitted report with the finding that the allegations were correct.

Thereafter, Respondent Number 3 made a reference under Section 19(1)(b) of the Act with the allegation that BCDA is involved in anti-competitive practices and issued circulars directing the retailers not to give any discount to the consumers and in this manner it had acted in contravention of the provisions of Section 3 of the Act.

The same was registered as Case Number 1 of 2013.

The Commission issued order dated 27.05.2013 and directed the DG to conduct an investigation into the reference along with Suo-moto Case Number 2 of 2012.

On receipt of that order, the DG sent communication dated 30.09.2013 to the Commission stating therein that he had already submitted reports dated 29.05.2013 and 24.09.2013 in Suo-moto Case Number 2 of 2012.

Subsequently, he informed the Commission that the investigation reports already submitted can also be read for the purpose of Reference Case Number 01 of 2013.

The supplementary investigation report submitted by the Jt.

DG was considered by the Commission in its meeting held on 17.12.2013 and it was decided to send copies of the main as well as supplementary investigation reports (non-confidential version) to the parties to enable them to file their reply objections along with their profit and loss accounts, balance sheets and turnover for the last three financial years.

The Commission also directed the parties to appear on 26.11.2013 for final hearing.

In response to the notice issued by the Commission, Shri Tushar Chakraborti (Honorary General Secretary of BCDA), filed reply on behalf of the Association in the form of his own affidavit dated 21.12.2013 to contest the findings recorded by the Addl.

DG and the Jt.

He claimed that the investigation was conducted in violation of the principles of natural justice and the findings were recorded without considering the relevant facts and documents.

Some members of the Executive Committee also filed their replies to contest the findings and conclusion recorded by the Jt.

DG in the supplementary report that they were responsible for the decisions taken by BCDA to impose restriction on the sale of drugs below the MRP and actions taken for enforcing those decisions.

The Commission considered the two investigation reports and formulated the following issues: Whether BCDA and its District and Zonal Committees were engaged in anti-competitive practices in violation of the provisions of section 3 of the Act? If finding on the issue Number (i) is in the affirmative, whether the members office bearers of the Executive Committee of BCDA and its District and Zonal Committees are also liable for the violation of section 3 of the Act? 1 3 .

The Commission first considered the record of the main investigation report, analysed the findings recorded by the Addl.

DG and held: In the aforesaid circumstances, the Commission holds that the BCDA and its District and Zonal Committees were engaged in anti-competitive practices of directly or indirectly determining the sale prices of drugs and controlling or limiting the supply of drugs through concerted and restrictive practices, in violation of the provisions of Section 3(3)(a) and (b) read with Section 3(1) of the Act.

After recording the aforesaid conclusion, the Commission referred to the supplementary investigation report and held that the office-bearers and the members of the Executive Committee of BCDA are guilty of contravention of the provisions of the Act.

The discussion on this aspect of the case is contained in paragraphs 69 to 71 and 73 of the impugned order, which are reproduced below: The office bearers in their common reply to the DG report have taken the plea regarding non application of the provisions of Section 48 of the Act upon the office bearers and executive members of BCDA as their liability is limited as per the Memorandum of Association of BCDA, being a non-profit company registered under Section 25 of the Companies Act, 1956.

As held by the Commission in Case Number 60/2012 (in the matter of M section Arora Medical Hall, Ferozpur Against Chemist Druggist Association, Ferozpur Ors.), the Commission reiterates that the provisions of Section 27 of the Act are sufficient to make office bearers liable for contravention without the aid and assistance of the provisions of Section 48 of the Act.

Additionally, the Commission notes from the records that BCDA is a company registered under Section 25 of the Companies Act, 1956 and provisions of Section 48 of the Act are undoubtedly applicable to the BCDA.

Thus, there seems to be no occasion to draw any distinction on the count.

Therefore, the Commission is of the view that the office bearers and executive members of the BCDA are guilty of the contravention and are liable to be punished.

On the aspect of penalty under Section 27 of the Act, the Commission is of the view that the said anticompetitive acts and conducts require to be penalized to cause deterrence in future among the erring entities engaged in such actions.

Accordingly, it is requested that the degree of punishment is scaled to the severity of the violation.

On this count, the position of BCDA to control the market of drugs and medicines in its area of operation is undoubted.

It has come clear during the investigation that BCDA and its District and Zonal committees are engaged in anticompetitive practices of directly and indirectly determining the sale price of drugs and controlling or limiting the supply of drugs through concerted and restricted practices in violation of Section 3(3)(a) and (b) read with Section 3(1) of the Act.

Therefore, the conduct of BCDA and its office bearers executive committee members requires to be sternly dealt with.

Further, no mitigating factor is shown by the parties and none is borne out from the records.

The Commission notes that one of the then office bearers Shri Niranjan Saha has since deceased and another office bearer Shri Dinesh Parolia has not submitted his financial statements.

Further, one more executive committee member mentioned by the DG namely Shri Pradeep Kumar Paul vide letter dated 29.11.2013 has submitted to the Commission that he is not in the business since 2010 and has requested exemption from submitting the financial statements.

A decision on the quantum of penalty with respect to Shri Parolia and or further view on non submission of financial statements by Shri Parolia and Shri Paul shall be taken separately.

Finally, the Commission imposed penalty on BCDA and its office bearers 10 of the average turnover income and on the members of the Executive Committee 7 of their respective income receipts.

The relevant extract of the operative part of the impugned order is reproduced below: Having given due consideration on the issue of quantum of penalty as well as the totality of facts and circumstances, the Commission decided to impose a penalty on the BCDA its those office bearers who are directly responsible for running its affairs and play lead role in decision making 10 and on the executive committee members 7, of their respective turnover income receipts based on the financial statements filed by them as follows: The appellants have questioned the penalty imposed on them on the ground of violation of the principles of natural justice.

It is the appellants case that due to non- supply of the copy of the main investigation report, they were deprived of an effective opportunity to controvert the allegation that they were incharge of and responsible for the anti-competitive decisions taken by BCDA.

Another ground taken by the appellants is that the Jt.

DG could not have called upon them to lead evidence in the context of proviso to Section 48(1) because no evidence had been produced collected during the investigation, which could prove that they were incharge of and responsible to BCDA for the conduct of its business.

They have also pleaded that while imposing penalty, the Commission altogether overlooked the decision taken by BCDA as early as in April, 2013 not to enforce the ban on reduction in MRP by the retailers.

We have heard learned counsel for the parties and carefully perused the record.

In our view, penalty imposed on the appellants is legally unsustainable and is liable to be quashed on the ground of violation of the principles of natural justice and also on the ground that the same is ultra vires the provisions of Section 48 of the Act.

It is not in dispute that after receiving notices issued by the Jt.

DG under Section 41(2) read with Section 36(2) of the Act, the appellants made applications for supply of copy of the investigation report dated 29.05.2013 but their request was rejected by the Commission.

As a result, the appellants could not know the basis of the findings recorded by the Addl.

DG that BCDA had indulged in anti-competitive practices and thereby contravened Sections 3(3)(a) and 3(3)(b) read with Section 3(1) of the Act.

The decision taken by the Commission in its meeting held on 18.06.2013 for ordering an investigation into the role of the office-bearers and the members of the Executive Committee of BCDA was entirely based on the findings and conclusions recorded in the main investigation report.

Therefore, the appellants were entitled to know the contents of the main investigation report for the purpose of preparing their defence in the context of notices dated 03.07.2013 issued by the Jt.

The Commissions refusal to make available copies of the investigation report to the appellants definitely caused serious prejudice to them because they were deprived of an effective opportunity to contest the allegations about their role in the decision-making by BCDA.

Therefore, the penalty imposed on the appellants is liable to be quashed.

The other reason for setting aside the penalty imposed by the Commission is violation of the scheme of Sections 27 and 48 of the Act, which read as under: Sec.

Orders by Commission after inquiry into agreements or abuse of dominant position.--Where after inquiry the Commission finds that any agreement referred to in section 3 or action of an enterprise in a dominant position, is in contravention of section 3 or section 4, as the case may be, it may pass all or any of the following orders, namely:- (a) direct any enterprise or association of enterprises or person or association of persons, as the case may be, involved in such agreement, or abuse of dominant position, to discontinue and not to re-enter such agreement or discontinue such abuse of dominant position, as the case may be (b) impose such penalty, as it may deem fit which shall be not more than ten per cent of the average of the turnover for the last three preceding financial years, upon each of such person or enterprises which are parties to such agreements or abuse: Provided that in case any agreement referred to in section 3 has been entered into by any cartel, the Commission may impose upon each producer, seller, distributor, trader or service provider included in that cartel, a penalty of up to three times of its profit for each year of the continuance of such agreement or ten per cent of its turnover for each year of the continuance of such agreement, whichever is higher.

(d) direct that the agreements shall stand modified to the extent and in the manner as may be specified in the order by the Commission (e) direct the enterprises concerned to abide by such other orders as the Commission may pass and comply with the directions, including payment of costs, if any (g) pass such other order or issue such directions as it may deem fit: Provided that while passing orders under this section, if the Commission comes to a finding, that an enterprise in contravention to section 3 or section 4 of the Act is a member of a group as defined in clause (b) of the Explanation to section 5 of the Act, and other members of such a group are also responsible for, or have contributed to, such a contravention, then it may pass orders, under this section, against such members of the group.

Contravention by companies- Where a person committing contravention of any of the provisions of this Act or of any rule, regulation, order made or direction issued thereunder is a company, every person who, at the time the contravention 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 contravention 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 if he proves that the contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such contravention.

Notwithstanding anything contained in sub-section (1), where a contravention of any of the provisions of this Act or of any rule, regulation, order made or direction issued thereunder has been committed by a company and it is proved that the contravention has taken place 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 contravention and shall be liable to be proceeded against and punished accordingly.

Explanation.--For the purposes of this section,-- (a) company means a body corporate and includes a firm or other association of individuals and (b) director, in relation to a firm, means a partner in the firm.

Section 27 is a part of Chapter IV of the Act, which contains provisions relating to duties, powers and functions of the Commission.

Under this section, the Commission is empowered to pass any of the orders enumerated in Clauses (a) to (g) if after inquiry it finds that any agreement referred to in Section 3 or action of an enterprise in a dominant position is in contravention of Section 3 or Section 4 of the Act.

Under Clause (a), the Commission can direct any enterprise or association of enterprises or person or association of persons involved in such agreement, or abuse of dominant position, to discontinue and not to re-enter such agreement or discontinue such abuse of dominant position.

Under Clause (b), the Commission can impose penalty upto of 10 of the average of the turnover for the last three preceding financial years, upon each of such person or enterprises which are parties to the agreements referred to in Section 3 or abuse referred to in Section 4.

Proviso to this clause lays down that if any agreement referred to in section 3 has been entered into by a cartel than the Commission can impose penalty of upto three times of profit for each year of continuance of an agreement or 10 of the turnover for each of the year of the continuance of such agreement, whichever is higher on every producer, seller, distributor, trader or service provider who is a party to an agreement entered into by a cartel.

In terms of Clause (d), the Commission can direct that the agreements found to be in contravention of Section 3 shall stand modified to the extent and in the manner as may be specified in the order.

Clause (e) lays down that the Commission can direct the enterprises concerned to abide by such other orders as the Commission may pass and mandate compliance thereof including payment of costs.

Clause (g) confers an omnibus power upon the Commission to pass such other order or issue such directions as it may deem fit.

Section 48 finds place in Chapter VI of the Act, which contains various provisions relating to penalties that can be imposed by the Commission.

Section 42 confers power upon the Commission to penalize any person, who, without reasonable cause, fails to comply with the orders or directions issued by it under Sections 27, 28, 31, 32, 33, 42A and 43A of the Act.

Under Section 42(2), the Commission can impose fine to the extent of rupees one lakh for each day during which such non-compliance occurs, subject to a maximum of rupees ten crore.

Sub-section 3 of Section 42 declares that if any person does not comply with the orders or directions issued, or fails to pay the fine imposed under sub-section 2 then he shall be punishable with imprisonment for a period which may extend to three years or with fine which may extend to rupees twenty-five crore, or with both, as the Chief Metropolitan Magistrate, Delhi may deem fit.

Section 42A provides for making any application by any person for recovery of compensation from any enterprise for any loss or damage suffered by him it as a result of violation of the directions issued by the Commission or contravention of any decision or order of the Commission issued under Sections 27, 28, 31, 32 and 33 or any condition or restriction subject to which any approval, sanction, direction or exemption in relation to any matter has been accorded, given, made or granted under the Act or delaying in carrying out the orders or directions of the Commission.

Section 43 lays down that if any person fails to comply, without reasonable cause, with a direction given by the Commission under Section 36(2) and (4) or the Director-General while exercising powers under Section 41(2), then he shall be punishable with fine which may extend to rupees one lakh for each day during which such failure continues subject to a maximum of rupees one crore.

Section 43(A) which was inserted with effect from 01.06.2011 provides for imposition of penalty if any person or enterprise fails to give notice under Section 6(2).

The extent of penalty which can be imposed under that section extend to one percent of the total turnover or the assets, whichever is higher, of such a combination.

Section 44 provides for imposition of penalty on a person, who is a party to a combination and makes false statement in any material particular, or knowing it to be false, or omits to state any material particular knowing it to be material.

The extent of penalty which can be imposed under this section is rupees fifty lakh to one crore.

Section 45 empowers the Commission to punish any person who fails to provide necessary information or documents, omits to state any material fact knowing it to be material, or willfully alters, suppresses or destroys any document which is required to be furnished.

Section 46 confers power upon the Commission to impose lesser penalty than the one specified in the preceding sections.

Section 48(1) lays down that where a person committing contravention of any of the provisions of the Act or of any rule, regulations, order made or direction issued thereunder is a company, every person who, at the time of contravention was incharge of and was responsible to the company for the conduct of its business as well as the company shall be deemed to be guilty of contravention and shall be liable to be proceeded against and punished accordingly.

Proviso to Section 48(1) contains a non-obstante clause and lays down that a person referred to in sub-section (1) shall not be liable to be punished if he proves that the contravention by the company was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such contravention.

Section 48(2) contains a similar provision qua any director, manager, secretary or other officer of the company.

However, this sub-section does not have proviso similar to the one contained in Section 48(1).

The explanation appended to Section 48 makes it clear that for the purpose of Section 48, the term Company means a body corporate and includes a firm or other association of individuals and the term Director in relation to a firm, means a partner in the firm.

Since the provision contained in Section 48(1) raises a presumption of guilty against every person, who, at the time of contravention of the provisions of the Act by the company, was incharge of, and was responsible for the conduct of its business and visits him with penalty, the same deserves to be construed strictly and in our view, the deeming provisions contained in the two sub-sections of Section 48 can be invoked only after it is found that the company has contravened the provisions of the Act or any rule, regulation, order made and direction issued thereunder.

The use of the word committed in the two sub-sections necessarily implies that before any person incharge of and responsible to the company or director, manager etc.

of the company can be proceeded against and punished by invoking the deeming provisions contained in Section 48(1) and or (2), there must exist an affirmative finding by some competent authority that the company has contravened the provisions of the Act or any rule, regulation etc.

Under the scheme of the Act, final determination on the issue of contravention of the provisions of the Act or any rule, regulation etc.

can be made only by the Commission and not by the Director General or any other authority.

Even the determination made by the Commission is subject to the right of the aggrieved person to challenge the same by filing an appeal under Section 53B(2) of the Act.

To put it differently, in the absence of a determination by the Commission that the company has committed contravention of any of the provisions of the Act or any rule, regulation etc., the deeming clause contained in Section 48(1) cannot be invoked for punishing the person incharge of and responsible to the company for the conduct of its business.

Similarly, the deeming provision contain in Section 48(2) cannot be invoked for penalising any director, manager, secretary or other officer of the company whose consent or connivance or negligence may have resulted in contravention of the provisions of the Act or of any rule, regulation or order made or direction issued thereunder by the company unless a finding is recorded by the competent authority that the company has in fact contravened the provisions of the Act.

The material placed on record which include the main as well as supplementary investigation reports do not show that the appellants were incharge of and responsible to BCDA for the conduct of its business at the time of contravention of Sections 3(3)(a) and 3(3)(b) read with Section 3(1) of the Act.

The supplementary investigation report does mention that the appellants were members of the Executive Committee and in that capacity, they had participated in various meetings where anti- competitive decisions were taken but that by itself cannot make the appellants liable under Section 48(1) because it has not been proved that they were incharge of the affairs of the company i.e. BCDA.

In other words, the mere fact that the appellants were members of the Executive Committee of BCDA and in that capacity, they were party to the decisions taken by BCDA to fix the prices of drugs and control the supply thereof cannot give rise to an inference that they were incharge of BCDA.

The primary burden to prove that the appellants case fell within the ambit of Section 48 of the Act was on the informant and or the investigating officer.

However, except summoning various resolutions passed by the Executive Committee and recording the statements of some persons including the retailers, no evidence was collected by the Addl.

DG or the Jt.

DG to prove that the appellants were incharge of BCDA or that their case falls within the ambit of Section 48(2).

In the absence of such evidence, the appellants could not have been punished with the aid of Section 48 of the Act.

At this stage, it will be apposite to observe that vide order dated 18.06.2013, the Commission had directed the DG to investigate the role of the individual office bearers of the Managing Committee Executive Committee in the decision-making in terms of Section 48(2) but the Jt.

DG issued notices to the appellants and straightaway called upon them to prove that the contravention was committed by BCDA without their knowledge or that they had exercised due diligence to prevent the commission of such contravention.

This was clearly contrary to the plain language of Section 48(1).

In Tamil Nadu Electricity Board Vs.

Rasipuram Textile (P) Limited and Others -  : (2008) 17 SCC 285, the Supreme Court interpreted Section 49-A of the Electricity Act, 2010 which is pari materia to Section 48 of the Act and held that the burden to prove that the particular person was incharge of and was responsible to the company for the conduct of business of the company is primarily on the complainant and the same shifts on the other party only if it is established by evidence that the particular person was, in fact, incharge of and was responsible to the company for its business.

Paragraphs 11 to 14 of that judgment which notices the relevant provision and contains analysis thereof read as under: Section 49-A which was inserted by Act 32 of 1959 provides for offence by companies.

It reads as under: 49A Offence by companies.--(1) If the person committing an offence under this Act is 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: Provided that nothing contained in this sub-section shall render any such person liable to any punishment, 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.

Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director or 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 purposes of this section.--(a) company means any body corporate and includes a firm or other association of individuals and (b) director, in relation to a firm, means a partner in the firm.

In terms of the aforesaid provision, therefore, it was obligatory on the part of the complainant not only to make requisite averments in the complaint petition but also to prove that any of the Directors who had been prosecuted for alleged commission of the aforementioned offence was incharge of and was otherwise responsible for the conduct or the affairs of the Company.

We have noticed hereinbefore that how the learned trial Judge has dealt with the entire aspect.

Learned trial Judge has misconstrued and misinterpreted the provisions of Section 49A of the Act.

In terms of sub-section (1) of Section 49-A, it is for the complainant to prove that the Director of the Company at the time when the theft was committed was in charge of and or was responsible for the conduct of its business.

Only in the event such an averment is made and sufficient and cogent evidence is brought on record to prove the said allegations, the proviso appended to Section 49-A would be attracted meaning thereby only in the event it is proved that a Director or a Group of Directors of the Company were in charge of and or were responsible for the conduct of the business of the company, the burden would shift on the accused to establish the ingredients contained in the proviso appended to Section 49-A of the Act.

Emphasis supplied The ratio of the above noted judgment is that the primary burden to prove that the particular person was, at the time of contravention incharge of and was also responsible to the company for the conduct of its business is on the one who makes such allegation and only after evidence has been led to prove that the particular person was, in fact, at the time of commission of contravention, incharge of and was responsible to the company for the conduct of its business, the burden shifts on such person.

In the absence of any evidence having been adduced collected during the main investigation to show that the appellants were incharge of and responsible to BCDA for the conduct of its business, the Jt.

DG did not have the jurisdiction to issue notices to the appellants under proviso to Section 48(1) of the Act and call upon them to produce evidence to prove that the contravention of Sections 3(3)(a) and 3(3)(b) read with Section 3(1) was committed by BCDA without their knowledge or that they had exercised due diligence to prevent the commission of such contravention.

As a corollary to the above discussion, it must be held that the very edifice of the further investigation conducted by the Jt.

DG was founded on a wholly erroneous assumption that the appellants were responsible for the contraventions of Section 3(3)(a) and 3(3)(b) read with Section 3(1) of the Act by BCDA and the burden to prove the negative was upon them and on this ground, the impugned order is liable to be set aside.

In Appeal Number 09 of 2016 - M section Alkem Laboratories Limited Vs.

Competition Commission of India and Others decided today, an issue substantially similar to the one raised in this appeal was considered.

In that case, the Commission had held Shri K. Haridas, who was Branch Manager and Shri Johnson Mathew, who was DGM-ACE of M section Alkem Laboratories Limited were liable to be punished with the aid of Section 48(1) of the Act.

The Tribunal set-aside the penalty imposed on all the appellants including Shri T.K. Haridas and Shri Johnson Mathew.

While dealing with the cases of the two individuals, the Tribunal analysed the provisions of Sections 27 and 48 of the Act, referred to the judgment of the Supreme Court in Tamil Nadu Electricity Board Vs.

Rasipuram Textile (P) Limited and Others -  : (2008) 17 SCC 285 and held that unless it is proved that the particular individual was incharge of and was responsible to the company for the conduct of its business, penalty cannot be imposed by invoking Section 48 of the Act.

The view taken by the Commission that the appellants could have been penalised under Section 27 without the help of Section 48 is ex-facie erroneous.

Section 27 deals with the cases in which an agreement referred to in Section 3 or action of an enterprise in a dominant position is found to be in contravention of Section 3 or Section 4.

In such an eventuality, the Commission can pass any of the orders enumerated in Clauses (a) to (g).

That section does not deal with role of individual office-bearers of an enterprise or association, which may be found guilty of having acted in contravention of Section 3 or Section 4 of the Act.

That subject is squarely dealt with in Section 48(1).

Therefore, if the ingredients of Section 48 are not satisfied, the Commission cannot fall back upon Section 27 to justify the imposition of penalty on the office-bearers of the Association, who are not shown to be incharge of and responsible to the company for the conduct of its business.

If the Legislature had intended to clothe the Commission with the power to impose penalty under Section 27 of the Act on each and every member of the association or officer of the organisation, then there was no necessity of separately enacting Section 48 which specifically deals with the issue relating to the liability of the persons incharge of and responsible to the company for the conduct of its business or a director, manager, secretary or other officer of the company where a contravention of any of the provisions of the Act or of any rule, regulation, order made or direction issued thereunder has been committed by a company and it is proved that such contravention has taken place with the consent or connivance of, or is attributable to any neglect on the part of such director etc.

The very fact that the Legislature has chosen to enact a specific provision for making the person incharge of and responsible to the company for the conduct of its business as also director etc.

liable for the contravention committed by the company, shows that Section 27 cannot be relied upon for penalising the office-bearers or the members of an association, unless the ingredients of Section 48(1) or (2) are proved.

Before concluding, we may also take cognizance of order dated 07.12.2015 passed in Appeal Number 42 of 2014 - Mr. Swapan Kumar Karak Vs.

Competition Commission of India and Others.

The facts of the case show that even though appellant, Swapan Kumar Karak had resigned from the position of the Director of the Managing Committee Executive Committee, the Commission penalised him by relying upon Section 27 read with Section 48 of the Act, totally ignoring the reply filed by him in response to notice dated 18.06.2013 issued by the Commission.

In that case, the Tribunal referred to Sections 27 and 48 of the Act and observed: An analysis of Section 27 shows that if the Commission finds that any agreement referred to in Section 3 or action of an enterprise in a dominant position is in contravention of Section 3 of Section 4, then it can direct the enterprise association of enterprises or person or association of persons involved in such agreement, or abuse of dominant position, to discontinue and not to re-enter such agreement or discontinue such abuse of dominant position.

The Commission can also imposed penalty, which shall not be more than 10 of the average of the turnover for the last three preceding financial years upon each of such person or enterprise, which are parties to such agreement or abuse.

If the finding of the Commission is that the agreement has been entered into by a cartel then it can impose upon each producer, seller, distributor, trader or service provider included in the cartel, a penalty upto three times of his profit for each year of continuance of such agreement or 10 of its turnover for each year of continuance of such agreement, whichever is higher.

The Commission can also ordain modification of the agreement to the extent in the manner specified in the order of the Commission or direct the enterprises concerned to abide by such other orders as it may pass and comply with the directions, including the payment of costs.

By virtue of Section 48(1), every person, who was incharge of, and was responsible to the company for conduct of its business at the time of commission of contravention is deemed to be guilty of contravention and is liable to be proceeded against and punished accordingly.

Section 48(2), which contains a non-obstante clause further provides that wherever contravention has taken place with the consent or connivance of, or attributable to any negligence on the part of any director, manager and secretary or other officer, then he shall also be deemed to be guilty of contravention and shall be liable to be proceeded against and punished accordingly.

In our considered view, Section 48(1) can be invoked only if the person against whom the proceedings are drawn was incharge of and was responsible to the company for the conduct of its business.

Sub-section (2) of Section 48 can be invoked if it is proved that contravention has taken place with the consent or connivance of or is attributable to any director, manager, secretary or other officer of the company.

Therefore, what is to be seen is whether Section 48 could have been invoked for holding the appellant guilty and imposing penalty on him.

It is neither the pleaded case of the respondent nor it has been argued by learned counsel for the Commission that the minutes recorded by the Organizing Secretary of BCDA had been signed by each of the members who were present in the particular meeting.

Therefore, the mere recording of presence of the appellant in the minutes of various meetings cannot be made basis for presuming that he had, in fact, participated in the meetings of the Executive Committee held after 25.09.2011 and was associated with the decision taken to impose ban on discounts by the retailers.

What is most surprising is that while imposing penalty, the Commission did make a note of the fact that the appellant had resigned from the Executive Committee (this inference is being drawn from the entry at Item Number 59 at the title box indicating the quantum of penalty), but did not bother to find out as to how the appellants name could appear in the records of the BCDA including the minutes of the meetings held after 25.09.2011.

On the basis of the above discussion, we hold that the penalty imposed on the appellants is liable to be quashed.

In the result, the appeal is allowed and the impugned order is set-aside in so far as the Commission has imposed penalty on the appellants.

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Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact None RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt ArgumentPetitioner ArgumentPetitioner ArgumentPetitioner ArgumentPetitioner RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon RatioOfTheDecision RulingByPresentCourt

Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt ArgumentPetitioner ArgumentPetitioner ArgumentPetitioner ArgumentPetitioner RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon RatioOfTheDecision RulingByPresentCourt

Fact Fact Fact Fact Fact None Fact Fact Fact None Fact Fact Fact Fact None Fact RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt None RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt None RulingByLowerCourt None RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt None Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact None Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt ArgumentPetitioner ArgumentPetitioner ArgumentPetitioner ArgumentPetitioner RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon RatioOfTheDecision RulingByPresentCourt

Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact Fact RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt RulingByLowerCourt ArgumentPetitioner ArgumentPetitioner ArgumentPetitioner ArgumentPetitioner RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute Statute RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision RatioOfTheDecision PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon PrecedentReliedUpon RatioOfTheDecision RulingByPresentCourt