Bcda Compat PDF

COMPETITION APPELLATE TRIBUNAL
NEW DELHI
APPEAL No. 37 of 2014

[Under Section 53B of the Competition Act, 2002 against order dated 11.03.2014
passed by the Competition Commission of India in Suo-moto Case No.2 of 2012
and Reference No.1 of 2013]
CORAM
Hon’ble Shri Justice G.S. Singhvi

Chairman
Hon’ble Shri Rajeev Kher

Member
In the matter of :
1. Bengal Chemist & Druggists Association

12, Bonafield Lane, 1st Floor,
Kolkata – 700 001.
2. Sh. Ranendra Narayan Roy,

President C/o. Medical & Surgical Corner,
68, R.B. Ghosh Road,
Burdwan – 713 101.
3. Sri Sunil Chandra Dey,

Vice-President,
C/o. Popular Drug House,
Station Road, Kaliagunj,
U. Dinajpur 733 129.
4. Sri Shyamal Dhar,

Vice-President
C/o. S.D. Distributors,
Rishi Bankim Nagar,
Baruipur, 24-Pgs (S)-743302.
5. Shri Joydip Roy,

Vice-President,
C/o. Soumyo Distributors,
Suri, Birbhum-713101.
6. Shri Rastrapati Dey,

Vice-President,
C/o. Dey & Sons,
9, Taltala Library Row,
Kolkata-700014.
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7. Sri Tushar Chakaraborty,

Honorary General Secretary,
C/o. T.C. Xponent Mediservices (P) Ltd.,
75, J.K. Street Uttarpara,
Hooghly-712258.
8. Sri Subodh Kumar Ghosh,

Organising Secretary,
C/o. Ghosh Medical Agency,
Mayrapara, Amta,
Howrah – 711401.
9. Sri Sankha Roy Choudhury

Administrative Secretary,
C/o. Gladstone Marketing Agency,
Sashadhar Ganguli Road,
Purulia-723101.
10. Sri Rabin Ray,

Finance Secretary,
C/o. Mohua Roy Distributors,
20/1, P.K. Roy Chowdhury Lane,
B. Garden, Howrah – 711103.
11. Sri Hiranmoy Undu,

Treasurer,
C/o. Sushila Enterprise,
2/11 Kanchariban Lane,
Habra 24-Pgs (N) 743263.
12. Sri Sajal Gangopadhyay,

Co-ordination Secretary,
C/o. Bankura jyotirmoyee Pharma (P) Ltd.,
Harishankar Babu’s Lane,
Bankura – 722 101.
13. Sri Rama Prasad Banerjee,

Co-ordination Secretary,
C/o. Florid, Pirojpur,
Maid – 732101.
14. Sri Debashis Guha,

Co-ordination Secretary
C/o. Guha Enterprise,
176/H/7, Manicktala Main Road,
Kolkata-700054.
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15. Sh. Gouranga Saha,

E.C. Member,
C/o. Ghosh & Co.,
71, B.R.B. Bose Road,
1st Floor,
Block-C, Room No.112 & 113
Kolkata-700001.
16. Sri Gouranga Dhar,

E.C. Member,
C/o. B.D. Medical Stores,
55, B.R.B. Bose Road,
Room No.148A, Kolkata-700001.
17. Sri Swapan Kumar Sil,

E.C. Member,
C/o. Sanchita Pharmaceutical,
6, Moulana Saukat Ali Street,
Kolkata – 700 073.
18. Sri Kartick Chandra Das Modak,

E.C. Member,
C/o. Netaji Medical Stores,
71,B.R.B. Bose Road,
Gr. Floor, Room-C/34,
Kolkata-700 002.
19. Sri Samir RanjanDas,
E.C. Member,
C/o. Rainbow Agency,
71, B.R.B. Bose Road, 1st Floor,
Blok-D, Room No.123,
Kolkata-700001.
20. Sri Jayanta Dey,
E.C. Member,
C/o. Shiba Sakti Medical Stores,
55, B.R.B. Bose Road, 2nd Floor,
Block-B, Room No.11,
Kolkata-700 001.
21. Shri Anil Vora,

E.C. Member,
C/o. New Indian Medical Stores,
55/76, BRB Bose Road,
Kolkata-700001.
22. Sri Chandresh B. Sanghvi,
E.C. Member,
C/o J.K. Associates,
71, B.R.B. Bose Road, 4th Floor,
Room No.C/418 & 420,
Kolkata-700 001.
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23. Sri Gora Tripathy,

E.C. Member,
C/o. Tripathy Brothers,
55, B.R.B. Bose Road, 2nd Floor,
Block-H, Room No.13,
Kolkata-700 001.
24. Sri Susanta Kar,
E.C. Member,
C/o. Indian Medical Stores,
22, Bonfield Lane,
Room No.14, 1st Floor,
Kolkata-700 001.
25. Sri Pratap Rudra Mahapatra,

E.C. Member,
C/o. N.K. Enterprise,
6A Mohan Chand Road,
Kolkata-700023.
26. Sri Manik Lal Das,

E.C. Member,
C/o. Mediasearch,
15B, Kalighat Road,
Kolkata-700 025.
27. Sri Samar Dey,

E.C. Member,
C/o. Sanita Pharmaceuticals,
8/1, Hogalban Pathway,
Sahapur Sitalatala Road,
Kolkata-700 036.
28. Sri Tarun Kumar Roy,
E.C. Member,
C/o. Menoka Medical Hal,
130, B.M. Naskar Road,
Kolkata-700060.
29. Sri Subir Sen,

E.C. Member,
C/o. Seno Drugs,
6A, Lakshmi Dutta Lane,
Kolkata-700 003.
30. Sri Prakash Saha,

E.C. Member,
C/o. Prakash Medical,
65, Bidhan Sarani,
Kolkata-700 006.
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31. Sri Udaychand Chatterjee,

E.C. Member,
C/o. Archana Distributors,
42/2-Applicant Jiban Krishna Mitra Road,
Kolkata-700 037.
32. Sri Swapan Kumar Saha Roy,

E.C. Member,
C/o. Nandan Medical Stores,
DD 35, Seba Hospital, Salt Lake,
Kolkata-700 064.
33. Sri Ripon Saha,

E.C. Member,
C/o. J.R. Enterprise,
P-192/Applicant Lake Town,
Block-A, Kolkata-700089.
34. Sri Ajit Kr. Majumdar,

E.C. Member,
Majumdar Enterprise,
101/Applicant B.T.Road,
Kolkata-700 090.
35. Sri Prabir Prasad Ghosal,

E.C. Member,
C/o Ghosal Traders,
2, Bijaynagar, Naihati,
24-Parganas (N) 743 165.
36. Shri Pradip Ghosh,

E.C. Member,
C/o. New Radha Krishna Medical Stores,
20, Barasat Road, Barrackpore,
(Near Rly, Gate 15),
24-Parganas (N) 743 102.
37. Sri Goutam Kumar Das,

E.C. Member,
C/o. Medichem Agency,
14-B, Dum Dum Road,
B.K. Singh Market, Room No.11,
Kolkata-700 074.
38. Sri Milan Chakraborty,

E.C. Member,
M/s. Drug Land,
Bhadrakali, Uttarpara,
Hooghly.
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39. Sri Jayanto Dey,

E.C. Member,
C/o. Gatewell Pharmacy,
Kesta Lal Bagan,
Sahagang Hooghly – 712104.
40. Sri Prodyot Banerjee,

E.C. Member,
C/o. Balaji Distributors,
51 Jagannath Ghat Lane Mahesh,
Seramore Hooghly 712 202.
41. Sri Mrina Chakraborty,

E.C. Member,
C/o. M.P. Drugs,
2/3 Sarkarpara Road,
Rajpur 24-Pgs (S) 743358.
42. Sri Jayanta Kumar Mondal,

E.C. Member BCDA,
C/o. Mondal Medical Stores,
205 Mondal Para, Khirishtala,
PO Sonarpur 24-Pgs (South),
Kolkata-700150.
43. Sri Prithwi Bose,

E.C. Member,
C/o. Minakshi Enterprise,
12, Kailash Bose Street,
Kolkata-700012.
44. Mr. Fazlur Rahaman Khan

E.C. Member
C/o New Khan Medicos
32, Dr. Suresh Sarkar Road,
Kolkata – 700 014.
45. Sri Kanchan Chatterjee

E.C. Member BCDA
C/o K.C. Enterprise
Panchla
Howrah -711322.
46. Sri Subir Chatterjee,

E.C. Member, BCDA
C/o Sukanya Enterprise
South Jhapardah, Domjur
Howrah -711405
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47. Sri Gautam Patra

E.C. Member, BCDA
C/o Peoples Agency,
Ichapur, Dakshinpara
Santragachi, Howrah -711 104.
48. Sri Samindra Nath Banerjee

E.C. Member
C/o Banerjee Medicine Enterprise
Bidhan Market, Katwa
Burdwan -713103.
49. Sri Ajoy Kumar Lohia
E.C. Member
C/o Evans Medica
G.P. Singha Road,
Bankura -722 101.
50. Sri Susana Patra
E.C. Member
C/o Patra Medical Store,
Taldangra, Bankura.
51. Md. Irfan Lodhi

E.C. Member
C/o Medi Mall
26, Zakaria Street
Kolkata -700 073.
52. Sri Amit Kumar Paul,

E.C. Member
C/o Hindusthan Chemists & Druggists Co.
61, Sovabazar Street
Kolkata -700 005.
53. Sri Biswanath Bhakat

E.C. Member
C/o Rampurhat Drug House
Vivekananda Road
Rampurhat, Birbhum -7312204.
54. Sri Atana Majumder

E.C. Member
C/o Shantu Pharmacy
P.W.D. More, Suri
Birbhum – 731101
55. Sri Mrinmoy Mishra

E.C. Member
C/o Ma Sarada Distributors
82, Dalalua, Egra
Purba Medinipur -721429.
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56. Sri Timir Baran Das Mahapatra

E.C. Member
C/o Srima Distributors
Egra
Purba Medinipur – 721429
57. Sri Bimal Chandra Bhowmik,

E.C. Member
C/o ABANTIKA
Dharinda (Rail Gate),
Tamluk, PurbaMedhipur -721636.
58. Sri Prasun Sangi

E.C. Member
C/o Sarangi Medicine
Nutandighi, Jhargram
Paschim Medinipur – 721507
59. Sr. Madhab Chandra Patra

E.C. Member
C/o Puja Pharmacy
Gokulchak, Jalchak
Paschim Medinipur
60. Sri Subhas Chakraborty

E.C. Member
C/o S.C. Pharmaceuticals
Sangam Cinema Building, Kalyani
Nadia -741235
61. Sri HirakSubhra Mukherjee

E.C. Member
C/o H. Mukherjee & Sons
Purbasa, Green Park,
Mokdumpur
Malda – 732103
62. Md. Entaz Ali

C/o Medi Centre
Emamjagir Dakshin Laxmipur
KalichakMalda 732201
63. Sri Debapriya Bose

E.C. Member BCDA
C/o Bose Enterprise
UkliparaRaiganj
U. Dinajpur – 733134.
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64. Sri Suvendu Mazumdar

E.C. Member
C/o Mazumder Pharmaceuticals
New Town, Islampur
U, Dinajpur 733202
65. Sri Ajit Saha

E.C. Member
C/o Saha Enterprise
Debinagar (Milipara) Maynagar
Jalpaiguri – 735224.
66. Sri Niladri Mukherjee

E.C. Member
C/o B.P. Enterprise
Chowpathi Birpara
Jalpaiguri 735204
67. Sri Soumya Brata Rakshit

E.C. Member
C/o Kalyani Enterprise
Kamarpara, JalpaiguriSadar
Jalpaiguri
68. Sri Babli Paul

E.C. Member
C/o Paul Pharmaceuticals
Hattola Road, Raghunathpur
Purulia -723133
69. Sri Nandan Banerjee

E.C. Member, BCDA
C/o Nandan Distributors
Taxi Stand
Purulia 723101
70. Sri Pradip Kumar Paul

E.C. Member
C/o Paul Drug House
255, Silver Jubilee Road
Cooch Behar – 736101
71. Sri Soumen Chakraborty

E.C. Member
C/o Micro Medicines Agency
Municipal Market Complex (S)
Immegation Road, Mathabhanga
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72. Sri Shyamal Kumar Saha

E.C. Member
C/o The Medicine House
Rupnarayan Road
Oppo Mayur Hotel
73. Sri Sushanta Ghosh

E.C. Member
C/o Medicine Corner
Mitra Nursing Home
Hakimpara, Siliguri
Darjeeling -734401
74. Sri Siddheswar Chowdhury

E.C. Member
C/o Hind Medical
Sisir Bhaduri Sarai
Khudiram Pally
P.O. Siliguri
Darjeeling -734001
75. Sri Samit Das

E.C. Member BCDA
C/o Hiran Medical Stores
Mahindra Bhawan
(Oppo. Central Bank)
Hill Cut Road, Siliguri
Darjeeling -734401
76. Sri Ramendra Narayan Roy

E.C. Member
C/o Bani Enterprise
Gangarampur
DakshinDinajpur – 733124
VERSUS
1. Competition Commission of India

Through the Secretary,
Hindustan Times House (3rd, 4th & 7th Floor),
18-20, Kasturba Gandhi Marg
New Delhi – 110 001.
2. Dr. Chintamoni Ghosh,

Director
Directorate of Drugs Control,
Department of Health and Family Welfare
5th Floor, KIT Building,
F-16, India Exchange Place
Kolkata – 700073. … Respondents
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Appearance : Shri Nakul Mohta, Advocate for the Appellants.
Shri Pallav Shisodia, Senior Advocate assisted by Shri

Abhishek Yadav, Advocate for Respondent No.1 – Competition
Commission of India.
Shri Azim H. Laskar, Advocate for Respondent No.2.
ORDER
10th May, 2016
Bengal Chemists and Druggists Association (BCDA), its President, 4 Vice-
Presents, Honorary General Secretary, Organising Secretary, Administrative
Secretary, Finance Secretary, Treasurer, 3 Co-ordination Secretaries and 62
members of the Executive Committee have jointly filed this appeal against order
dated 11.03.2014 passed by the Competition Commission of India (for short ‘the
Commission’) under Section 27 of the Competition Act, 2002 (for short ‘the Act’)
whereby it accepted the main as well as the supplementary investigation reports
prepared by the Additional Director General (Addl. DG) and the Joint Director
General (Jt. DG) respectively, and held that BCDA and its District and Zonal
Committees were engaged in the anti-competitive practices of, directly or
indirectly, determining the sale prices of drugs and controlling / limiting the supply
of drugs through concerted and restrictive trade practices in violation of Sections
3(3)(a) and 3(3)(b) read with Section 3(1) of the Act and also imposed penalty @
10% of the turnover/ income / receipts of BCDA and its office-bearers and @7%
on the members of the Executive Committee of BCDA.
2. BCDA was initially incorporated on 11.07.1921 under the Companies Act,
1913 as ‘Calcutta Chemists and Druggists Association’ as a limited company. In
1950, its name was changed to ‘Bengal Chemists and Druggists Association’.
Subsequently, it was registered as a non-profit company under Section 25 of the

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Companies Act, 1956. The main objects of BCDA, as enumerated in its
Memorandum of Association are :
“4. The objects for which the Association is established are:
(1) To develop and maintain friendly relations
amongst its members and all persons engaged in
the Trade and Industry.
(2) To promote and protect the trade and find out ways
and means for the same and utilize them.
(3) To collect and circulate statistics and other
information relating to trade.
(4) To arbitrate disputes amongst members of the
Trade and Industry.
(5) To promote, support or oppose by Lawful means
Legislative and other measures relating to Drug
Trade.
(6) To establish just and equitable principles in Trade
and Industry.
(7) To maintain uniformity in Rules, Regulations and
usages of Trade and industry.
(8) To communicate or co-operate with Govt.
Chambers of Commerce and other medical or
mercantile or international or public bodies or
individual with a view to concern and promote
measures for the protection or improvement of
Trade Industry and the Persons engaged therein.
……………
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(16) To take necessary steps to safeguard the public in
all possible way particularly against adulterated or
under strength or spurious pharmaceutical
preparation or help in undertaking of legal action in
such matters.”
2. 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 BCDA is engaged in anti-competitive practices inasmuch
as it has been directly or indirectly determining the sale prices 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 contained in the e-mail 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.
3. The Addl. DG, to whom the investigation appears to have been entrusted,
issued notices to BCDA, Director (Directorate of Drugs Control, West Bengal) and
M/s. Medplus Global Mart Pvt. Ltd., Jatindra Mohan, Dhanwantary House, Chemist
Corner, Charu Medical Store, Charu Marketing Agency, Life Drug House Pvt. Ltd.,
Life Line, Life Line Medical Stores under Section 41(2) read with Section 36(2) of
the Act and called upon them to reply to the specific queries and furnish certain
information/documents. BCDA furnished the required information and documents.
The Addl. DG also recorded the statements of 8 persons including the General
Secretary of BCDA.
14
4. During the currency of investigation, BCDA passed resolution dated
20.04.2013 that it shall not initiate any organisational movement against any
wholesaler / retailer offering discounts below the Maximum Retail Price (MRP). In
response to Query No. 6 put to him during the recording of his statement on
30.04.2013, General Secretary of BCDA, Shri Tushar Chakraborty, made the
following assertions :
“As stated above, the BCDA represents the interest of
approximately 35,000 members, most of whom are small
retailers owning a single shop. Their livelihood depends on
their shops. If these small shopkeepers are subjected to
intense competition on account of discounts then the livelihood
of our members and their families will be at stake. As such, the
State BCDA has adopted policies which not only protect the
livelihood of our members but also the interests of the
consumers…….
At this stage, it will be appropriate to submit that the provisions
of the Competition Act are not known to us and we never
thought that the organizational movement to protect our
retailers, by ensuring the margins as granted under the DPCO
and similar other understanding in the trade, may be in conflict
with the provisions of the Competition Act. In any case, the
organizational movement of the BCDA in the matter of grant of
discounts is no longer in vogue ever since the Competition
Commission of India has taken cognizance in the matter by
issuing notices to us.

15
We undertake and assure the Competition Commission of India
that BCDA is a law abiding association and it shall never
undertake any activity which is against the law of the land.
Accordingly, the BCDA has already taken the decision that it
shall not carry out any organizational movement which prohibits
any wholesaler or retailer to give discounts or restricts their
freedom of trade.”
[Emphasis supplied]
5. Shri Tushar Chakraborty also filed affidavit dated 03.05.2013, paragraphs 3
and 4 of which reads as under :
“3. That the wholesalers / retailers may give away any
discount as per their own decision and that the BCDA shall take
no action which restricts their right to carry on trade in any
manner and till to date BCDA has never initiated any unlawful
action to restrict any traders.
4. That the BCDA has not only ceased the impugned
practice of opposing sale of drugs by offering discounts or
selling drugs below MRP, which was accepted as a policy
decision but that the BCDA shall also desist from the same in
future.”
6. After completing the investigation, the Addl. DG submitted report dated
29.05.2013. He extensively referred to the stand taken by BCDA qua the
allegation of anti-competitive decisions and the minutes of the meetings of the

16
Executive Committee held between 2011 and 2013 and recorded the following
conclusions :
“23.3 Thus, it may be observed that the BCDA has taken a plea
of its ignorance of law in defense of its action. It has also
taken a plea that the sale of drugs on MRP ensures a
margin which has been granted under the DPCO and is
accepted in the industry. It has further submitted that its
activities are intended to sub serve the interests of its
approximately 35,000 members, most of whom are small
retailers owning a single shop and whose livelihood
depends on their shops. He has further expressed a
concern that if these small shopkeepers are subjected to
intense competition on account of discounts then the
livelihood of their members and their families will be at
stake. In the Affidavit, while there is no admission of its
having indulged in unlawful activities, it has been
nonetheless stated that the BCDA will cease and desist
from the impugned practice.
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

17
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.”
7. 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. On
the basis of that decision, the Commission passed an order of the same date, the
relevant portions of which are reproduced below :
COMPETITION COMMISSION OF INDIA
18th June, 2013
In Re : Bengal Chemist & Druggist Association

18
Suo-Moto Case no. 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.”
8. In compliance of the direction contained in the afore-mentioned order, the
Jt. DG, to whom the matter appears to have been transferred, issued notices to
the office-bearers and the members of the Managing Committee / Executive
Committee of BCDA under Section 41(2) read with Section 36(2) of the Act and
called upon 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 one of the members
19
of the Executive Committee, namely, Shri Shib Shankar Nag Sarkar, is reproduced
below :
“Office of the Director General

Competition Commission of India
‘B’ Wing, HUDCO Vishala, 14 Bhikaji Cama Place,
No. DG/CCI/IW/1/12/2012
Dated : 03.07.2013
By Speed Post
To,
Shri Shibshankar Nag Sarkar/2537

E.C. Member
C/o Nag Pharmacy
53/2, T.D. Banerjee Road, Saktinagar,
Nadia – 741102.
Sub. : 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 No. 02 of 2012 and Case No. 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
20
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.
2. 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.
3. 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]
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9. On receipt of the notices issued by the Jt. DG, many office-bearers and
members of the Executive Committee submitted applications for supply of copy of
the investigation report to enable them to file their response. Their request was
placed before the Commission, which decided not to supply copy of the
investigation report at that stage. The decision of the Commission was
communicated to the appellants by the Jt. DG vide letters dated 07.08.2013. By
way of illustration, letter dated 07.08.2013 sent to one of the members of the
Executive Committee, Shri Angshuman Dey, is reproduced below :
“Office of the Director General

Competition Commission of India
‘B’ Wing, HUDCO Vishala, 14 Bhikaji Cama Place,
No. DG/CCI/IW/1/12/2012
Dated : 07.08.2013
By Speed Post
To,
Shri Angshuman Dey/ 2753

E.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 No. 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

22
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.
2. As regards your request for copy of the Investigation
Report in Suo Moto Case No. 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.
3. 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.
4. 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,

23
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.
5. 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”
10. 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 :
“8. 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

24
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
no. 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.
9. 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.
10. 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.).

25
11. Regarding the request for being provided copy of the
information/Complaint filed against the Association in the
other identical Case No. 1/2013, the parties were
informed that the same could be obtained by them by
making an Applicant to the Secretary, CCI.
12. 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

26
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.).
13. 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.
14. 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

27
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.
15. 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
xxx xxx
28
xxx xxx
xxx xxx
xxx xxx
xxx xxx
“The Agenda No. 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

29
appreciated the endeavour of North Calcutta District
Committee in keeping a close vigil on M/s. Life. He has
proposed taking strong decision not only against M/s. 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.
“Under Agenda No. 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

30
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.”
“Under Agenda No. 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

31
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/s Life
and Medplus would be called for a meeting. In this
meeting, the General Secretary has proposed for
organizational movement against M/s 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.
“Under Agenda No. 5, the Organizing Secretary stated
that as per the recommendation of East Calcutta District
Committee, organizational movement should be
implemented against M/s. Charu Medical Stores and M/s.
Charu Marketing Agency for giving discount. One
member also reported that by vigilance drive both
Charu's have been caught. Another member has stated
that both the Charu's 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/s. Life Line, Medplus,
Dhanwantary. He has also stated that this problem is
mainly centered in Kolkata Districts. The General

32
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/s 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.
“The Agenda No. 3 for the meeting dated 23.06.2012 of
the Executive Committee was 'To discuss about the

33
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/s. 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

34
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

35
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/s
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.”
xxx xxx
xxx xxx
xxx xxx
36
xxx xxx
xxx xxx
In the minutes of the Executive Committee meeting dated
20.04.2013, under Agenda No.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
17. In view of the above, it is concluded that besides the
Bengal Chemists and Druggists Association, its Office

37
Bearers & Executive Committee members listed above
at Serial Nos. 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)
11. 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 No. 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
No. 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 No. 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 No. 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 No. 2 of 2012.
Subsequently, he informed the Commission that the investigation reports already
submitted can also be read for the purpose of Reference Case No. 01 of 2013.
38
12. 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
replies/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.
13. 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. DG. 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.
14. The Commission considered the two investigation reports and formulated
the following issues :
(i) 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 ?
(ii) If finding on the issue No. (i) is in the affirmative, whether
the members/office bearers of the Executive Committee

39
of BCDA and its District and Zonal Committees are also
liable for the violation of section 3 of the Act ?
15. The Commission then 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.”
16. 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 responsible for contravention
of the provisions of the Act by the Association. 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 :
“69. 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

40
BCDA, being a non-profit company registered under
Section 25 of the Companies Act, 1956.
70. As held by the Commission in Case no. 60/2012 (in the
matter of M/s 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.
71. 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.
73. 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

41
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.”
18. On the basis of the aforesaid findings and conclusion, 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

42
income / receipts. (The table showing the quantum of penalty imposed on BCDA,
its office-bearers and members of its Executive Committee is not being reproduced
because the same is not necessary for the purpose of deciding the issues raised
in the appeal).
19. The appellants have questioned the impugned order on the ground of
violation of principles of natural justice and also on the ground that the penalty
imposed by the Commission is arbitrary, unreasonable and disproportionate to the
gravity of the contravention of Sections 3(3)(a) and 3(3)(b) read with Section 3(1)
of the Act committed by BCDA. The appellants have pleaded that due to non-
supply of the main investigation report, the office-bearers and the members of the
Executive Committee of BCDA 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 plea taken by the appellants is that
the Jt. DG could not have called upon the office-bearers and members of the
Executive Committee to lead evidence with reference to proviso to Section 48(1)
because no evidence had been produced / collected during the investigation of
proving that they were incharge of and were responsible to BCDA for the conduct
of its business. Yet another plea taken by the appellants is that even though BCDA
had passed resolution dated 20.04.2013 not to initiate any organisational
movement against any wholesaler / retailer offering discounts below the MRP and
to this effect, a statement was made by the General Secretary of BCDA on
30.04.2013, who also filed affidavit dated 03.05.2013, the Commission arbitrarily
imposed the maximum penalty on BCDA and substantially heavy penalty on the
office-bearers and the members of the Executive Committee.

43
20. We have heard learned counsel for the parties and carefully perused the
record.
21. By an order passed today in Appeal No. 34 of 2014 – Shib Shankar Nag
Sarkar and another Vs. Competition Commission of India and others, the Tribunal
has set aside the penalty imposed on both the appellants, who were members of
the Executive Committee of BCDA. The relevant portions of that order are
reproduced below :
“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 ultravires the provisions of Section 48
of the Act. It is not in dispute that on receipt of the notices
issued by the DG under Section 41(2) read with Section 36(2)
of the Act, the appellants had made written requests for supply
of copy of the investigation report dated 29.05.2013 but the
same was declined 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 which were contrary to 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

44
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. DG. The Commission’s refusal to
make available copies of the investigation report to the
appellants has 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 and
on this ground alone, the penalty imposed on the appellants is
liable to be quashed.
20. The other reason for setting aside the penalty imposed
on the appellants is that the impugned order has been passed
in violation of the scheme of Sections 27 and 48 of the Act.
These provisions read as under :
“Sec. 27. 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;

45
(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 :

46
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.”
“Sec. 48. Contravention by companies –
(1) 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.
47
(2) 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.”
21. 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

48
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.

49
22. 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,

50
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 wilfully 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.
23. 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

51
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-absente 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.
24. 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

52
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

53
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.
25. 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.
It is true 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. To put it differently, 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).
54
In the absence of such evidence, the appellants could not have
been punished with the aid of Section 48 of the Act.
26. It is 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 its decision-making in
terms of Section 48(2) but the Jt. DG issued notices to the
appellants and other members of the Executive Committee of
BCDA under the proviso to Section 48(1) by assuming that they
were incharge of and were responsible to BCDA for the conduct
of its business. This was clearly contrary to the plain language
of Section 48(1). In Tamil Nadu Electricity Board Vs.
Rasipuram Textile (P) Ltd. 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 :
“11. Section 49-A which was inserted by Act 32 of 1959
provides for offence by companies. It reads as
under:
55
“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.
(2) 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

56
(b) ‘director’, in relation to a firm, means a partner
in the firm.”
12. 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.
13. 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.
14. 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

57
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]
27. 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.
28. As a corollary to the above discussion, it must be held
that the very edifice of the further investigation conducted by

58
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.
29. In Appeal No. 09 of 2016 - M/s. 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 T.K. Haridas, who was Branch Manager and Shri
Johnson Mathew, who was DGM-ACE of M/s. 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)
Ltd. 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.
30. 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

59
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

60
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 No.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 :
“25. 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

61
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.
26. 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

62
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.
27. 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.
31. 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

63
that the appellant had resigned from the Executive Committee
(this inference is being drawn from the entry at Item No.59 at
the title box indicating the quantum of penalty), but did not
bother to find out as to how the appellant’s name could appear
in the records of the BCDA including the minutes of the
meetings held after 25.09.2011.”
22. For the reasons recorded in the order passed in Appeal No. 34 of 2014, which
shall be read as part of this order, the penalty imposed on Appellants Nos. 2 to 76
is liable to set aside because no evidence was produced to prove that they were
incharge of and were responsible to BCDA for the conduct of its business and, in
any case, the Jt. DG could not have determined their liability under Section 48 of
the Act by assuming the existence of factors enumerated in Section 48(1) or 48(2)
of the Act. No doubt, some of the appellants were office-bearers of BCDA and
some others were members of the Executive Committee and they had taken part
in various meetings where the decisions to impose restriction on the sale of drugs
below the MRP and to limit/restrict the supply of drugs were taken, but that by itself
cannot lead to a conclusion that they were incharge of and responsible to BCDA
for the conduct of its business. The Jt. DG was under obligation to collect evidence
to prove that the particular office-bearer(s) / member(s) of the Manging
Committee/Executive Committee was/were, in fact, incharge of and responsible to
BCDA for the conduct of its business. Then and then only, penalty could have
been imposed on them with the aid of Section 48(1) or 48(2) of the Act.
23. The penalty imposed on Appellant No. 1 i.e. BCDA, also deserves to be
modified. Although, the findings recorded by the Addl. DG, which has been
approved by the Commission that BCDA had indulged in the anti-competitive
practices and, thereby, contravened Section 3(3)(a) is not vitiated by any error of
64
law and the Commission was justified in imposing penalty under Section 27 of the
Act, but while doing so, it ought to have given due weightage to the fact that during
the currency of investigation, BCDA had passed a resolution dated 20.04.2013 to
discontinue the anti-competitive practice and its General Secretary filed affidavit
dated 03.05.2013 clearly stating that the wholesalers / retailers may give any
discount as per their own decision and no action would be initiated / taken by BCDA
to restrict their right to carry on their trade. In paragraphs 23.0, 23.1 and 23.2 of
main investigation report dated 29.05.2013, the Addl. DG did make a reference to
the minutes of the meeting of BCDA held on 20.04.2013, statement dated
30.04.2013 made by Shri Tushar Chakraborty and affidavit dated 03.05.2013 filed
by him, but the Commission did not take cognisance of the fact that BCDA had
revoked the anti-competitive decisions. That apart, there is nothing on record from
which it can be inferred that BCDA had repeatedly indulged in similar anti-
competitive activities in the past and no evidence was produced to prove the
impact of the anti-competitive decisions taken by BCDA between 2011 and 2013.
In this scenario, the Commission was not justified in imposing the maximum
penalty @ 10% of the average of its turnover for three preceding financial years.
In our view, the remedial measures taken by BCDA to withdraw the anti-
competitive decisions and its resolve not to resort to similar practices in future
warrants a lenient view and the ends of justice will be adequately served by
reducing the penalty imposed by the Commission from 10% to 1% of the average
of the turnover of BCDA for the last three preceding financial years.
24. In the result, the appeal is partly allowed. The finding recorded by the
Commission that BCDA has acted in contravention of Sections 3(3)(a) and 3(3)(b)
read with Section 3(1) of the Act is upheld. However, the penalty imposed on the
office-bearers and the members of the Executive Committee of BCDA is set aside
65
and the penalty imposed on BCDA is reduced from 10% to 1% of average of its
turnover for the last three preceding financial years.
25. While issuing notice in appeal, the Tribunal had directed that status quo as it
existed on the date of impugned order shall be maintained. Subsequently, by order
dated 13.11.2014, the Tribunal modified the interim order and directed that the
status quo shall operate only qua the penalty imposed by the Commission.
Therefore, Appellant No. 1 i.e. BCDA, shall deposit the modified penalty within a
period of 60 days. If the needful is not done, then BCDA will make itself liable to
be penalised under Chapter VI of the Act.
26. All the pending interim applications shall stand disposed of.
[G.S. Singhvi]
Chairman
[Rajeev Kher]
Member

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COMPETITION APPELLATE TRIBUNAL

APPEAL No. 37 of 2014

Hon’ble Shri Justice G.S. Singhvi

Hon’ble Shri Rajeev Kher

1. Bengal Chemist & Druggists Association

2. Sh. Ranendra Narayan Roy,

3. Sri Sunil Chandra Dey,

4. Sri Shyamal Dhar,

5. Shri Joydip Roy,

6. Shri Rastrapati Dey,

7. Sri Tushar Chakaraborty,

8. Sri Subodh Kumar Ghosh,

9. Sri Sankha Roy Choudhury

10. Sri Rabin Ray,

11. Sri Hiranmoy Undu,

12. Sri Sajal Gangopadhyay,

13. Sri Rama Prasad Banerjee,

14. Sri Debashis Guha,

15. Sh. Gouranga Saha,

16. Sri Gouranga Dhar,

17. Sri Swapan Kumar Sil,

18. Sri Kartick Chandra Das Modak,

21. Shri Anil Vora,

23. Sri Gora Tripathy,

25. Sri Pratap Rudra Mahapatra,

26. Sri Manik Lal Das,

27. Sri Samar Dey,

29. Sri Subir Sen,

30. Sri Prakash Saha,

31. Sri Udaychand Chatterjee,

32. Sri Swapan Kumar Saha Roy,

33. Sri Ripon Saha,

34. Sri Ajit Kr. Majumdar,

35. Sri Prabir Prasad Ghosal,

36. Shri Pradip Ghosh,

37. Sri Goutam Kumar Das,

38. Sri Milan Chakraborty,

39. Sri Jayanto Dey,

40. Sri Prodyot Banerjee,

41. Sri Mrina Chakraborty,

42. Sri Jayanta Kumar Mondal,

43. Sri Prithwi Bose,

44. Mr. Fazlur Rahaman Khan

45. Sri Kanchan Chatterjee

46. Sri Subir Chatterjee,

47. Sri Gautam Patra

48. Sri Samindra Nath Banerjee

51. Md. Irfan Lodhi

52. Sri Amit Kumar Paul,

53. Sri Biswanath Bhakat

54. Sri Atana Majumder

55. Sri Mrinmoy Mishra

56. Sri Timir Baran Das Mahapatra

57. Sri Bimal Chandra Bhowmik,

58. Sri Prasun Sangi

59. Sr. Madhab Chandra Patra

60. Sri Subhas Chakraborty

61. Sri HirakSubhra Mukherjee

62. Md. Entaz Ali

63. Sri Debapriya Bose

64. Sri Suvendu Mazumdar

65. Sri Ajit Saha

66. Sri Niladri Mukherjee