M.B.Sharma, J. - (1.) This is a Miscellaneous Petition in which the order dated January 16, 1986 passed by the learned Chief Judicial Magistrate Bharatpur under which the learned Chief Judicial Magistrate ordered that the petitioner here in Govind Lal Partner of the firm M/a Onkarlal Nathulal & Company be summoned under bailable warrant in the sum of Rs. 2000/-. The petitioner challenged the said order before the learned Addl. Sessions Judge and the learned Addl. Sessions Judge under his judgment dated August 12, 1988 dismissed the revision petition.
(2.) First the facts which are these Hari Dutt Sharma the then Food Inspector, Bharatpur, took a sample of Deshi Ghee on August 24, 1979, from the shop of M/s Mohanlal Govind Lal, situated at Atalbandh Road Bharatpur. At that time Mohanlal was at the shop. The sample was sent to Public Analyst who had examined it and under his report dated September 28, 1979 the Public Analyst found it adulterated. It was given our by Mohanlal that he had purchased the Deshi Ghee from Onkar Lal Nathulal and Co. Therefore, after taking sanction for prosecution under Section 20 of the Prevention of Food Adulteration Act, 1954 a complaint was filed by the Food Inspector against M/s Onkar Lal Nathulal & Co. and Mohanlal Gupta sen of Radhey Shyam Gupta. Learned Magistrate under his order dated February 6, 1980, ordered that complaint be filed against the accused and ordered that the accused person be summoned. He does not appear to have taken cognizance of offence. Be that as it may, the order for taking cognizance was made and the cognizance of offence was taken against the firm M/s Onkar Lal Nathulal and Co.
(3.) It is not the case of the prosecution and was not the case of the prosecution even in the complaint when it was filed as to who were the partners of M/s Onkarlal Nathulal & whether the petitioner was partner of that firm,& if so, whether he or any other partner was the incharge or responsible to the conduct of the business of the company which term includes the firm, by virtue of Explanation and more so clause (a) of Sec. 17(1). Under Section 17(1) of the Prevention of Food Adulteration Act it is provided that where an offence is committed by a company and then if the person, if any, who has been nominated under sub-section (2) of Sec. 17 to be incharge of and responsible to the company for the conduct of the business of company or where no person has been so nominated, 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 and the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Therefore, where there are no allegations that the petitioner herein who admittedly is a partner of the firm of M/s Onkarlal Nathulal & Co. since October 26, 1973 by virtue of the entry in the Register No 67 of the Indian Partnership Act which is available on record was incharge of and responsible to the firm, it is not possible to either take cognizance against him or hold him guilty for any offence, even if one might have been committed by the firm. A reference to the complaint has already been made and in the complaint it has not been mentioned that any partner of the firm much less the petitioner who was not by then even known to be the partner of that firm, was incharge of the business of the firm. The law is settled that in the pleadings the name of the partner should be mentioned who was incharge of or responsible to the business of the firm and unless it is done, no cognizance of the offence can be taken against the partner. Therefore, in my opinion, the learned Magistrate could not have ordered that the petitioner should be summoned through bailable warrants.;