JUDGMENT : 1. The Respondents 10 Government Appeal No. 94 of 1977 who are also Petitioners in Criminal Revision No. 355/17 were prosecuted u/s 7(l)(a)(ii) of the Essential Commodities Act for contravention of the provisions of the Orissa Declaration of Stocks and Price of Essential Commodities Order, 1973 (hereinafter referred to as "the Order)". Both the Respondents have been convicted under the aforesaid section and each of them has been sentenced to pay a fine of Rs. 100/-, in default to suffer S.I. for seven days, Government Appeal\ No. 94/76 is in respect of the sentence and Criminal Revision No. 355 of 1977 is directed against the order of conviction. 2. The prosecution case is that both the accused persons are partners of the firm . "M/s. Rajrang Dal and Flour Mills" at Jaunliapati. On 4-7-1975 at 4 p.m. the Vigilance Officers along with Additional Commercial Tax Officer, Cuttack Inspected the premises of the mill under the supervision of the Deputy Superintendent of Police, Vigilance. On verification of the Stock and Price Board, exhibited by' the firm showing the opening balance of the stock of essential commodities on that day and the stock in presence of the witnesses, shortages were found on four items. The cash credit memo did not reveal any transaction for the day. Thus, it is alleged that the firm did not exhibit the opening balance of the stock of the above four items of essential commodities, correctly in the Stock and Price Board and thereby contravened the provision of the Order. The Inspector of Vigilance (P.W. 7) sized the stock of those four items and Stock and Price Board in presence of the accused persons as well as in presence of witnesses. He reported the matter to the Superintendent of Police, Vigilance. Accordingly, the case was registered and charge-sheet was submitted. The accused persons deny to have committed any offence and plead not guilty. Accused Roshanlal Agarwalla took the plea that as he had undergone operation of his abdomen, he was not looking after the management of the firm. 3. From the F.I.R. (Ext. 6), it would appear that the two accused persons have been made accused being partners of the firm M/s. Barang Dal and Flour Mills. Accused Roshanlal Agarwalla took the plea that as he had undergone operation of his abdomen, he was not looking after the management of the firm. 3. From the F.I.R. (Ext. 6), it would appear that the two accused persons have been made accused being partners of the firm M/s. Barang Dal and Flour Mills. It is also mentioned in the F.I.R. that the firm carried on business and contravened the provision of the Order, as it did not exhibit the opening balance of the Stock and Price of the above four articles correctly in the Stock and Price Board and thereby violated the provision of Section 3 of the Order. 4. It is admitted by the prosecution witnesses that the accused persons were not present when the raiding party went to the mill premises. The Gumasta of the firm was in the shop, the accused persons were called and they came subsequently. P.W. 1, the Sub-Inspector of Vigilance says that the accused persons who are owners were not present at the time when they went to the premises and they were sent for. Both these persons came after some delay, namely, about one and half hours, but by then the physical verification bad been started. Two persons were working in the business premises of the accused persons, but he cannot say what they were doing. P.W. 2 is Additional Commercial Tax Officer who accompanied P.W. 1, states that the mill was open and the Gumasta of the accused persons was working. The accused persons were not there and they came after being sent for. P.W. 5 who has been examined as a person of the locality has stated that he does not know whether the accused persons sold any article. P.W. 6 is a broker. He says that accused persons were not present while the mill was checked by the Inspector of Vigilance. The accused persons were called thereafter and they came subsequently. P.W. 1 says that the accused persons were called at about 9 p.m. to the mill. By the time they reached the spot, the weighment of the articles was going on. P.W. 1 has been cross-examined to say which of the accused persons managed the mill. He says that accused Paban Kumar managed the mill, but could not say whether Roshanlal also managed the mill. By the time they reached the spot, the weighment of the articles was going on. P.W. 1 has been cross-examined to say which of the accused persons managed the mill. He says that accused Paban Kumar managed the mill, but could not say whether Roshanlal also managed the mill. He has no idea as to who was the proprietor of the mill. 5. It is contended by Mr. Mohanty, the learned Counsel' for the accused persons, that the admitted position is that both the accused persons are partners of the firm and the mill belongs to the firm. Contravention of any of the provisions under the Essential Commodities Act would make the firm liable but in the present case, the firm has not been made an accused. Only the accused persons who are partners of the firm have been prosecuted. He further contends that the prosecution has not established that these accused persons or anyone of these two accused persons was in charge and was responsible for the conduct of the business of the firm as well as the firm itself. 6. Section 10 of the Essential Commodities Act relates to offence by companies. The relevant provisions of the said section are as follows: If the person contravening an order made u/s 3 is a company, every person who at the time 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 and shall be liable to be proceeded against and punished accordingly. xx xx The Explanation appended to this section says: For the purposes of this section: (a) "company" means any body corporate, and includes a firm or other association of individuals; and (b) "director" in relation to a firm means a partner in the firm. It is not disputed that the offence is alleged to have been committed by the company. Reliance has been placed on the State of Madras Vs. C.V. Parekh and Another, which was a case u/s 10 of the Essential Commodities Act. It is not disputed that the offence is alleged to have been committed by the company. Reliance has been placed on the State of Madras Vs. C.V. Parekh and Another, which was a case u/s 10 of the Essential Commodities Act. It was urged in that case that two persons were in charge of, and were responsible to, the company for the conduct of the business of the company and consequently, they must be held responsible for the sale of essential commodities and for thus contravening the provisions of the Iron and Steel Control Order. The Supreme Court held that there was no finding that the company Contravened the provisions of the Iron and Steel Control Order. The company was also not charged with the offence at all and the liability of the persons in charge of the company only arises when the contravention is by the company itself. As there was no evidence and no finding that the company contravened Clause 5 of the Iron and Steel Control Order, the two accused persons cannot be held responsible. The aforesaid case was considered by this Court in Santikumar Agarwalla v, State ILR 1975 Cutt. 86. It was held 10 that case that the licence was In the name of the firm but not the accused. The primary liability for persecution on account of contravention of the Order and the Conditions of the licence lies on the firm. The partner of a firm or Director of a company cannot be convicted for such an offence unless the firm itself is prosecuted. In the instant case, there is no dispute that the licence is in the name of the firm. It is also apparent that the firm has not been prosecuted and, as such, the prosecution of these two accused persons is not sustainable In a recent decision of this Court in Chandrasekhar Das v. State Crl. Rev. No. 183 of 1978, the case of Shantikumar Agarwalla v. State ILR 1975 Cutt. 86. has also been followed and as the firm was not proceeded against, the manager was acquitted of the charge levelled against him under the Essential Commodities Act. It was further held in that decision that there was no evidence to show that the accused of that case was in charge of, and was responsible to the business. 86. has also been followed and as the firm was not proceeded against, the manager was acquitted of the charge levelled against him under the Essential Commodities Act. It was further held in that decision that there was no evidence to show that the accused of that case was in charge of, and was responsible to the business. The Sessions Judge has convicted on the ground that the accused was a person who manages the firm. This finding was reversed by this Court as there was no evidence that the accused was in charge of and responsible to the firm for the conduct of the business. 7. In the present case admittedly the firm has not been proceeded against. There is no evidence on record to show that either both the accused persons or anyone of them was in charge at the relevant time and was responsible for the conduct of the business Section 10 provides that the person contravening an order should not only be in charge of, but also be responsible to, the company for the conduct of the business as well as the company itself. Both the ingredient are to be established. In the instant case, there is no evidence establishing both the aforesaid ingredients and, as such, the accused persons cannot be held responsible. Reliance has been placed by the learned Additional Standing Counsel on the case of State of Orissa v. Sibo Narayan Patro and Anr. Govt. Appeal No. 52 of 1975. In that judgment, the learned Judge has related only on Section 10 of the Essential Commodities Act. The decision of the Supreme Court in State of Madras Vs. C.V. Parekh and Another, as well as of this Court In Santikumar Agarwalla v. State ILR 1975 Cutt. 86, were not brought to the notice of the Court. In view of the consistent decisions of the Supreme Court followed in two judgments of this Court which were also earlier decisions, I hold that the conviction of the accused persons is not sustainable. 8. In the result, Criminal Revision No. 355 of 1977 is allowed and the Petitioners are acquitted of the charge levelled against them and their conviction and sentence are set aside. Government appeal No. 94 of 1976 is dismissed. Criminal revision allowed, Government appeal dismissed. Final Result : Dismissed