- (1.) Ramesh Chand petitioner was convicted by the CJM Sawaimadhopur, by his judgment dated April 10, '80, for contravention of clause (4) of the Rajasthan Wheat (Regulation of Trade) Order, 1973 for carrying on business as a dealer in wheat in quantity exceeding one quintal on any day, without] obtaining a licence u/s. 3/7 of the Essential Commodities Act, 1955, and was sentenced to rigorous imprisonment for three months and a fine of Rs. 500/ -. Along with the petitioner, Mahesh Chand was also convicted and sentenced. Both of them filed Criminal Appeal No. 47/80 before the Sessions Judge, Sawaimadhopur. The Sessions Judge, Sawaimadhopur by his judgement dated July 6, '85, allowed the appeal of Mahesh Chand on the ground that it was not established by the prosecution that Mahesh Chand had anything to do with the firm. M/s Mahesh Chand Ashok Kumar However the conviction and sentence awarded by the C. J. M. Sawaimadhopur to the petitioner, were upheld. The petitioner has come in revision to this Court.
(2.) The facts in brief are that on Dec. 30, '75, Mohanlal Barua Enforcement Inspector, Sawaimadhopur, inspected the precincts of firm M/s Mahesh Chand Ashok Kumar, situated in Badria, Bazar, Sawaimadhopur Railway Station. It was found that Ramesh Chand petitioner was present in the shop when the shop was inspected. Seven bags of wheat weighing 7 quintals was found in the shop apart from 'gwar' and 'jwar' weighing 50 Kgs and 20 Kgs. respectively. It was found that no licence had been obtained for carrying on business in wheat. THE wheat bags were accordingly seized by the Enforcement Inspector and were handed over on a 'supardginama'. On Dec. 4 '76, another Enforcement Inspector, Ram Gopal Purohit filed a written complaint against Mahesh Chand and Ramesh Chand, alleging contravention of clause 4 of the above-mentioned Order. It was alleged in Para-2 of the complaint that at the time of inspection of the shop, Ramesh Chand petitioner, partner of the firm M/s Mahesh Chand Ashok Kumar, was present and that this firm dealt in retail sale of food grains, and that it did not have any licence. The trial court, after recording evidence, found both Ramesh Chand and Ramesh (sic Mahesh) Chand guilty and convicted them. As already stated, Mahesh Chand was acquitted by the Sessions Judge, Sawaimadhopur, and therefore, only conviction and sentence as against the petitioner, Ramesh Chand survives. It was urged by the learned counsel for the petitioner that it was Mohanlal Barua, Enforcement Inspector, Sawaimadhopur, who had, according to the complaint and the inspection-memo, inspected the firm Mahesh Chand Ashok Kumar, but, he was not examined in the case. On the other hand, it was Shri P. C. Bansiwal, who was Enforcement Officer, Sawaimadhopur, on Dec. 30, 75, who was examined. It was contended that P. C. Bansiwal was not present at the time of the inspection of the shop, and therefore, his evidence could not be accepted that the petitioner in any capacity was dealing in wheat, on the firm Mahesh Chand Ashok Kumar. The second contention advanced by the learned counsel for the petitioner is that according to the complainant, the offence was committed by a partnership firm running under the name and style of M/s Mahesh Chand Ashok Kumar. Section 10 of the Essential Commodities Act, deals with the liability of the persons when offences are committed by the companies, which, for the purposes of the said section, means any body-corporate and includes a firm or other associations of individuals. This section inter alia provides that if the person contravening an order made u/'s 3, is a company, every person, who, at the time when 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. This is subject to the proviso that if any such person proves that the contravention took place without his knowledge or that he had exercised due diligence to prevent such contravention, he shall not be liable. Sub-sec. (2) of S. 10 deals with vicarious liability of any Director, Manager, Secretary or other officer of the company, where it is proved that the offence had been committed with their consent or connivance. The learned counsel has urged that it was not even proved in this case that the petitioner was a partner of the firm M/s Mahesh Chand Ashok Kumar, and the firm was also not prosecuted. On examination of the record of the case, I am of the view that both the contentions put forward by the learned counsel for the petitioner, are well-founded. It is generally noticed that these Enforcement Inspectors, who act as an executive machinery for the implementation of the Essential Commodities Act, which is an enactment enacted for ensuring proper supply and distribution of essential commodities, do not act respectively enough, and remain content by filing criminal complaints only for statistical purposes. From the inspection memo, it does not appear that M/s Mahesh Chand Ashok Kumar was a partnership firm. There is nothing to show that the Enforcement Inspector made any attempt to find out the character of the firm. Mohanlal Barua, who was Enfor-cement Inspector, it appears, thereafter, stood transferred and the criminal complaint was filed by Ram Gopal Purohit, Enforcement Inspector. The latter Enforcement Inspector, without any verification from the inspection memo or other documents, carelessly described firm Mahesh Chand Ashok Kumar as a partnership firm and alleged that petitioner Ramesh Chand was its partner. He did not choose to file the criminal complaint against the partnership firm. which had committed the contravention and contended himself by filing the complaint against Ramesh Chand petitioner alone as partner of this partnership firm. If the case of the complainant was that firm Mahesh Chand Ashok Kumar was a partnership firm, it should have, while filing the complaint against Mahesh Chand and Ramesh Chand, taken care to see that this fact was not only estab-lished by evidence, but was also pleaded in the complaint that the petitioner was in-charge and was responsible to the partnership firm M/s Mahesh Chand Ashok Kumar. This assertion was not at all made in the complaint much less pvroed. Reference in this connection maybe made to the decision of their Lordships of the Supreme Court in Sheoratan Agarwal vs. State of Madhya Pradesh (1 ). That was also a case under the Essential Commodities Act, and his Lordship O. Chinappa Reddy, J. construed the provisions contained in S. 10 of the Essential Commodities Act. It was observed by his Lordship that according to Sec. 10, any one or more or ail of the persons mentioned in the section, may be prosecuted and punished. The person-in-charge only may be prosecuted. The conniving officers may individually be prosecuted. One, some orall may be prosecuted. There is no statutory compulsion that a person in charge or an officer of the company may not be prosecuted unless, Sec. 10 indicates the persons who may be prosecuted where the contravention is made by the company. It does not lay down any condition that the person in-charge or an officer of the company may not be separately prosecuted if the company itself is not prosecuted. Each or any of them may be separately prosecuted with the company; Sec. 10 lists the persons who may be held guilty and punished when it is a company that contravenes an order made u/s. 3 of the Act. Naturally, before the person-in-charge or an officer of the company is held guilty in that capacity, it must be established that there has been a contravention of the order of the company. Reference was made by his Lordship to the decision in State of Madras vs. C. V. Parekh (2) wherein, it was stated that the first condition for the applicability of S. 10, is that a person contravening the order, must be a company itself. In that case, there was no finding that any contravention of the provisions of the Iron & Steel (Control) Order was made by the company. It was held in C. V. Parakh's case that liability of the person-in-charge of the company only arises when the contravention is by the company itself. Since there was no evidence and no finding that the company had contravened the order, the respondents in that case were held not responsible.
(3.) In the present case, there is not an iota of evidence adduced that M/s Mahesh Chand Ashok Kumar was a partnership firm or that Mahesh Chand and Ramesh Chand were its partners. Thus, it is not established that contravention of the Order was made by a partnership firm which is included in the definition of "company" as given in S. 10 of the Act, for the purposes of that section. When the complainant failed to establish that there was any contravention by a partnership firm, and when it is neither alleged nor established that Ramesh Chand petitioner was a partner of the firm and was overall-in-charge and responsible to the firm, no conviction can be made in relation to him for contravention of clause (4) of the said Order. There is further nothing to show that P. C. Bansiwal, Enforcement Officer had gone along with the Enforcement Inspector Mohanlal Barua, to inspect or search the business-precincts of the firm M/s Mahesh Chand Ashok Kumar. Had he gone for inspection or checking his presence would have been mentioned in the checking-memo, and more so, when the Enforcement Inspector has mentioned the names of the persons, present at the time of inspection and checking. P. C. Bansiwal could not be a witness to say that the petitioner was dealing in food-grams and was in possession of seven quintals of wheat in hit business premises, on Dec. 30, '75. On both these grounds, the conviction and sentence awarded to the petitioner, cannot be sustained; and the petitioner deserves to be acquitted. Before parting with this order, this Court would deprecate the irresponsible conduct in prosecutions by the Enforcement Authorities, appointed for enforcement of the Essential Commodities Act. .;