JUDGMENT K.C. Aggarwal, J. - On 31st May, 1972 the Food Inspector visited the confectionery shop of the applicants and found Chandra Prakash at the shop selling adulterated Boondi sweets. He obtained sample of Boondi against payment of price. The sample was divided into three parts and thereafter one of the parts was delivered to Chandra Prakash, the applicant no 1. The Public Analyst, to whom also one of the parts taken on 31st May, 1972 was sent, reported that the sample was coloured with un-permitted coal-tar dye. There, the Executive Officer of the Cantonment Board, Meerut filed a complaint under section 7/16 of the Prevention of Food Adulteration Act against Chandra Prakash and Jagdish Prasad. 2. The accused pleaded not guilty to be charge framed against them. The Magistrate found the applicants guilty of selling boondi coloured with prohibited dye and sentenced them to a fine of Rs. 1000/- and rigorous imprisonment for six months each. Against the aforesaid order, an appeal was taken to the Sessions Judge. On 14-11-1973, the appeal was dismissed and the conviction and service of the applicants were upheld and confirmed. Against the aforesaid order of the Sessions Judge, the present revision was filed. 3. One of the points that was raised in the revision was that as the quantity of 'Boondi' taken by the Food Inspector fell short of the requirement provided by rule 22 of the Rules framed under the Prevention of Food Adulteration Act, to conviction of the applicants was illegal. Entertaining a doubt, I referred the following question to a Division Bench : "Whether Rule 22 of the Rules framed under the Prevention of Food Adulteration Act applies to the present case, and the non-compliance of the same was fatal to the case of the prosecution ?" The Division Bench held that rule 22 had been substantially complied with and, as such, the proceedings could not be vitiated, because the quantity prescribed by rule 22 was not sent to the Public Analyst. In view of the answer given by the Division Bench to the question mentioned above, the first point relating to the applicability of rule 22 has no substance. 4. In view of the answer given by the Division Bench to the question mentioned above, the first point relating to the applicability of rule 22 has no substance. 4. The next question that arises for consideration is whether both the applicants, who were made accused on the basis that they were the partners carrying on the business together, could be held guilty for having committed the offence charged for. The prosecution case was that Jagdish Prasad and Chandra Prakash both were guilty of offences as they were doing business together. Admittedly, at the time when the sample was obtained, Jagdish Prasad was absent. Exh. Ka. 1, is a receipt given by Chandra Prakash to the Food Inspector in lieu of the price which had been received by the former from the latter for the sale of Boondi. In this receipt Chandra Prakash mentioned. "Mai Dukan Par Kam Karta Hun". T.N. Atre, Food Inspector appeared as P.W. 1. He could only state that Jagdish Prasad and Chandra Prakash were the brothers and that both of them were doing business at the premises. He did not state that Jagdish Prasad was either incharge of or responsible for the business. 5. There is no dispute that the liability of a partner of the firm, when another partner has committed the offence, depends on the application of section 17(1) or (2) of the Prevention of Food Adulteration Act. Section 17(1) may apply if the absent accused is incharge of or responsible for the conduct of the business of the firm. In the present case, there is no evidence to indicate that Jagdish Prasad was either incharge of or responsible for the business. Atra (P.W. 1) did not make any statement on this aspect of the matter. He could say only that the two persons were the brothers. Similarly, the statement of Devdutt P.W. 3 is also not helpful on the said point. In Manibai v. State of Maharashtra, 1973 F.A.C. 349 the Supreme Court had an occasion to consider the scope of sub-section (1) of section 17. In that case one Pranjiwan and his mother Manibai were the persons carrying on the business. Manibai was the licensee of the shop while Pranjiwan was co-licensee of the shop. In Manibai v. State of Maharashtra, 1973 F.A.C. 349 the Supreme Court had an occasion to consider the scope of sub-section (1) of section 17. In that case one Pranjiwan and his mother Manibai were the persons carrying on the business. Manibai was the licensee of the shop while Pranjiwan was co-licensee of the shop. Before the Supreme Court it was contended that conviction of Manibai was not justifiable on the ground that she was not present at the time when the sample was obtained by the Food Inspector. The High Court held that Manibai was not incharge of the shop nor was she conducting the business of the shop from whom the Food Inspector purchased the sample. The Supreme Court considered the question and observed : "Even if it may be assumed that the business was owned by a firm or an association of individuals and Manibai was a partner of that firm or member of that association of individuals, Manibai would be liable under section 17(1) of the Act for the sale which was made by her son Pranjiwan only if it was shown that she was incharge and was responsible for the conduct of the business which was carried on at the shop. There is no evidence to that effect on the record. In the absence of such evidence no criminal liability for the sale of coconut oil by Pranjiwan can be fastened on Manibai under the provisions of the Act." In the instant case, the submission made by the learned counsel for the applicants also was that there was no evidence which could show that Jagdish Prasad was incharge of or responsible for the conduct of the business. I have already mentioned the evidence above. There is nothing to indicate that Jagdish Prasad was either incharge of the business or responsible for it. Merely, because the licence stood in his name, it was not possible to hold that either he was incharge of or responsible for the said business. In the above case before the Supreme Court also, the licence stood in the name of Shrimati Manibai. 6. In the result, the revision succeeds partly and is allowed. The conviction and sentence of Jagdish Prasad are set aside whereas that of Chandra Prakash are maintained. Jagdish Prasad is on bail. He need not surrender. His bail bonds are discharged. Chandra Prakash is also on bail. 6. In the result, the revision succeeds partly and is allowed. The conviction and sentence of Jagdish Prasad are set aside whereas that of Chandra Prakash are maintained. Jagdish Prasad is on bail. He need not surrender. His bail bonds are discharged. Chandra Prakash is also on bail. He shall surrender to his bail bonds failing which he shall be taken into custody and sent to jail to serve out the remaining sentence.