JUDGMENT Shambhu Prasad Singh J. The petitioner was convicted for an offence under section 7 (1) of the Bihar Weights and Measures (Enforcement) Act 1959 and sentenced to undergo rigorous imprisonment for a period of nine months by the trial court. On appeal the lower appellate court has confirmed the conviction but altered the sentence from imprisonment to that of a fine of Rs. 1000/- only, in default, to undergo simple imprisonment for a period of one month. 2. The prosecution case, briefly stated, is that the petitioner is proprietor of a firm M/s. Dayabhai Patel and Sons, located at Samastipur and that when Vidya Sharan (p. w. 3) Inspector of Weights and Measures, visited the shop of the firm on the 22nd of July 1965, he found one Babubhai Patel son of the petitioner, selling dried tobacco leaves with a• weight of ten seers which was a non standard weight. Other non standard weights of five seers, two seers and one seer were also found in the shop. P. w. 3 seized the non standard weights and after obtaining permission from the Controller of Weights and Measures submitted a report. 3. The defence of the petitioner was that he had no connection with any man of the name of Babubhai Patel. He also claimed that he was not present at the shop when the non standard weights were allegedly seized by p. w. 3. According to him the case instituted was a false one. 4. It appears that for want of correct address the proceeding as against Babubhai Patel was dropped and it continued only as against the petitioner who was ultimately convicted and sentenced as aforesaid. 5. It has been contended by Mr. Braj Kishore Narain, learned counsel for the petitioner that in absence of any evidence that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of the petitioner, he, as a partner of the firm could not be convicted. 5. It has been contended by Mr. Braj Kishore Narain, learned counsel for the petitioner that in absence of any evidence that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of the petitioner, he, as a partner of the firm could not be convicted. Reliance in this connection has been placed on section 42 of the said Act which runs as follows ;- "(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 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 by company and it is proved that the offence has been committed 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 offence and shall be liable to be proceeded against and punished accordingly." My attention has been specifically drawn to sub-section (a) of that section. Learned counsel has also relied on a decision of the Supreme Court in the State of Madras V. C. V. Parekha and another. 1 That was a case under the Essential Commodities Act. The provisions that Act and of the act under consideration on the question of liability of a partner of the firm, for an offence committed by the firm or an agent or employee of the firm, are similar, sub-section, (1) of section 42 quoted above, cannot apply as against the petitioner as no finding has been recorded by the courts below that the offence was committed by the firm which is a company for the purposes of that section. The firm was not made an accused and no charge was framed against it. The firm was not made an accused and no charge was framed against it. Further under sub-section (2) aforesaid even if there was a finding that the offence was committed by the firm. The petitioner as a partner could not have been held liable unless there was evidence and finding that it was committed with his consent or connivance or was attributable to any neglect on his part. In, he circumstances, the conviction of the petitioner cannot stand and has to be set aside. 6. In the result, the application is allowed the conviction and sentence passed against the petitioner are set aside. However, before closing the Judgment I would like to observe that it was not a case where the proceeding should have been dropped as against Babubhai Patel. He should have been traced out and tried for the offence. It is also a case where the charge should have been framed against the company itself and the company should have been put on trial. It is desirable that the company and Babubhai Patel are prosecuted for the offence. Application allowed.