T.C. Das, J. - (1.)THE Food Inspector, Sibsagar at Jorhat, on 22.8.75 visited M/S G.K. Ice Factory situated in Ward No. 8 at Sibsagar. He was accompanied by P.W. 2, Nilambar Rajkhowa and one Bipul Barua, P.W. 3, a peon of the Civil Surgeon Office at Jorhat. He, along with the witnesses went inside the factory and found accused Binode Kumar Agarwalla and purchased 1500 grams of each variety of ice candy (orange and red) from the factory which were meant for storing and selling the said articles of ice candy. The food Inspector separated the said quantity of the ice candy into different heads and put the same in different bottles suspecting the same to be adulterated. After observing the formalities, samples of the ice candy of both the varieties were sent to Public Analyst. On receipt of the report from the Public Analyst and as these were found to be adulterated, sanction was sought for to prosecute the Respondents under the provisions of Prevention of Food Adulteration Act. On obtaining sanction, a criminal prosecution was started against the Respondents in two different cases. We are at present dealing with C.R. Case No. 56/76. Two separate prosecution cases were started against both the Respondents being C.R. Case No. 56/76 out of which the present appeal arises and the other being C.R. Case No. 57/76. Both the cases were tried jointly and the prosecution adduced common evidence. By a common judgment, the trial Court acquitted both the Respondents involved in both the cases. Therefore, against the order of acquittal passed by the learned trial Court the State has preferred this appeal in C.R. Case No. 56/76 which we have now taken up for disposal.
(2.)ON perusal of the impugned judgment, we find that on a preliminary point the learned trial Court decided the case without discussing further evidence on record, If we decide the preliminary point one way or the other, will it be a bar on us to give decision on merit by discussing the evidence on record? Our answer is that it is not so. Because this being an appeal (though against the order of acquittal) we can examine the facts and the law including the evidence on record, oral as well as documentary.
Mr. A.R. Paul Mazumdar, learned P.P. has submitted before us and perhaps very correctly, that already 10 years have rolled by and if the proceeding again goes back to the trial Court on technical ground, it would not only harass the parties but also it would cause undue delay. This has been submitted by Mr. Paul Mazumdar, P.P. because Dr. Sarma learned Counsel for the Respondents has insisted that though the judgment of the trial Court is not based on proper appreciation of evidence on record, there is no findings as to whether the learned trial Court had accepted the report of the Public Analyst. However, we are not going too far in that aspect of the matter as because we can examine the evidence on record to finally decide the case. We are aware of the maxim that "delay defeats equity and justice''.

(3.)NOW let us examine the contentions as raised by the learned P.P. in this appeal. The main contention raised before us is that the learned trial Court erred in proper appreciation of the principle of law on the point as to whether in absence of impleading the company or partnership and/or the other remaining partners as a party to this proceedings, will the prosecution fail? The learned trial Court based the decision on this point relying on a decision of this Court rendered in Hanuman Prasad Lohia v. State of Assam (Criminal Revision NO. 153/72). Dealing with the provisions of Section 17 read with Section 7 of the Essential Commodities Act, it was held by this Court that the prosecution has to establish that the officer or partner was in charge of and responsible to the firm or company for the conduct of the business of the company or firm at the time when the alleged offence was committed. It was further held that it was the duty of the prosecution to establish that the offence was committed by a partner of the firm. The decision of Hanuman Prasad (supra) was not followed by a Division Bench of this Court in Tezpur Municipal Board v. Mohanlal Tibriwal (Criminal Appeal No. 9/71 disposed of on 10 -12 -76) wherein it was held:
Though in the Single Bench decision of this Court in Hanuman Prasad Lohia v. State of Assam, 1973 ALR 169 in agreement with the decision of the Madras High in V.K Verma v. Corporation : (AIR 1971 Mad 40) one of us (Sarma, J), took the view that the prosecution of a partner without the prosecution of the firm itself is bad, we are now of the opinion that it was not a correct view. What Sub -section (1) of Section 17 provides, is that in such a case besides the person, who at the time the offence was committed, was in charge of and responsible to the company for the conduct of the business of the Company, the company (which also includes a partnership) would also be deemed to be guilty and shall be liable to be proceeded against.

;