JUDGMENT 1. - Heard learned counsel for the petitioner. 2. The petitioner has been convicted under section 3(7) of the Essential Commodities Act, and sentenced to three months rigorous imprisonment and a fine of Rs. 2,000/-. 3. According to the prosecution on April 12, 1976, Smt. Usha Lal Enforcement Officer, inspected the shop of the petitioner and found that the petitioner was doing the business of selling wheat without any licence She also found that the wheat was spread outside the shop for being sold and no price list was displayed. The prosecution examined four witnesses in support of its case. The explanation of the accused was that he is not doing any business of selling wheat. He was an agriculturist and the wheat in question was brought from his field for the purpose of sending it to his in-laws. The learned Magistrate held that the petitioner was a dealer and his explanation was not found to be true. In such circumstances the learned Magistrate convicted the petitioner for offence under section 3/7 of the Essential. Commodities Act and sentenced him the six months rigorous imprisonment and a fine of Rs. 2,000/-, in default further three months rigorous imprisonment. On appeal the learned Additional Sessions Judge No. 2, Jaipur City, upheld the conviction of the petitioner but reduced the sentence to three months rigorous imprisonment, and maintained the fine. Hence this revision. 4. Learned counsel for petitioner first contended that under section 10 of the Essential Commodities Act when an offence is committed by a Company or a firm it was incumbent to implead the firm as an offender and in the absence of such firm being impleaded as an offender, its partner or partners cannot be punished. Reliance in this connection is placed on Manmohan and another v. The State of U.P. and another, 1975 Cri. L.J. 1241. , M/s. Krishna Trading Co., and others v. State of Bihar, 1979 Cri. L.J. 760. and Avinashi Lal and Another v. State of Rajasthan, 1980 Cri. L.J. (Raj.) 515. I see no force in the above contention of the learned counsel. 5. In Avinashilal's case (supra), in the complaint filed by the Enforcement Officer only names of the accused persons were mentioned and it was further mentioned that they were proprietors of the firm Chbabil Ram Om Prakash. L.J. (Raj.) 515. I see no force in the above contention of the learned counsel. 5. In Avinashilal's case (supra), in the complaint filed by the Enforcement Officer only names of the accused persons were mentioned and it was further mentioned that they were proprietors of the firm Chbabil Ram Om Prakash. In the body of the complaint all allegations were against the firm and it was not averred that the accused petitioners were the partners at the time when the contravention was committed by the firm and that they were incharge of and were responsible for the conduct of the business of the firm. In the above circumstances it was observed that under section 10(1) of the Act for contravention by the Company, other persons are only made vicariously liable, if at toe time of the contravention committed by the Company they were incharge of and were responsible to the Company in the conduct of its business. The question of vicarious liability can only arise if the Company has been arrayed as accused. In the case before me there is no question of vicarious liability. The petition has been mentioned as partner of the firm Babulal Ashok Kumar in the complaint and the offence is alleged against him as a partner of the firm. In Messrs Krishna Trading Co's case (supra) the petitioner had been mentioned in the charge sheet but it had not been stated that they were incharge of and responsible to the Company or they firm for the conduct of its business. It was not stated as to how the petitioners No. 2 and 3 were connected with the actual working or conduct of the business of the firm except that it was admitted that they were partners thereof. In the F.I.R. bungling in sale of Vanaspati was mentioned to have been done by Messrs. Krishna Trading Co., of Maroofganj wherein the said firm had been mentioned as an accused and the petitioners Nos. 2 and 3 had not been mentioned as accused. In the above circumstances the company was not included in the charge sheet and it was held "in the charge sheet, however, as I have stated above, the company has not been mentioned as accused but the two petitioners have been mentioned as such. 2 and 3 had not been mentioned as accused. In the above circumstances the company was not included in the charge sheet and it was held "in the charge sheet, however, as I have stated above, the company has not been mentioned as accused but the two petitioners have been mentioned as such. Legal lacuna, therefore, in satisfying the requirement of Section 10 of the Essential Commodities Act has been created by the slight omission on the part of the authority concerned while submitting charge sheet. As already stated above the facts in the case before me are entirely distinguishable as in the present case the direct responsibility of the petitioner has been shown in the complaint. 6. In Manmohan's case (supra) it was observed in connection with section 10 of the Essential Commodities Act that in order to fasten liability on a person other than the company, it was essential for the company to show that such a person was incharge of and was responsible to the Company for the conduct of its business. Both these ingredients must essentially by proved. Reliance was placed on an earlier ruling of that Court in D. K. Jain v. The State, AIR 1965 Allahabad 525 in which it was held that in order to hold an employee variously liable for the offence committed by the Company it must be established that there was some nexus the crime either because of his connivance or due to criminal negligence which has resulted in the commission of the crime. To make the applicant liable therefore, for the offence committed by the Company or its Salesman, who was physically present on the scene, it must be proved that the offence was committed with his connivance. The above case renders no assistance to the petitioner at all. 7. In the facts of the case before me both the courts below have held proved that the petitioner was the partner of the firm Babu Lal Ashok Kumar and was selling wheat outside the shop in question without obtaining licence. 8. The next contention made by the learned counsel for the petitioner is that both the lower courts have not taken into consideration the provisions of Section 360 Cr. P.C. in not granting the benefit of probation offenders Act. In the case before me the offence under section 3/7 is clearly made out. 8. The next contention made by the learned counsel for the petitioner is that both the lower courts have not taken into consideration the provisions of Section 360 Cr. P.C. in not granting the benefit of probation offenders Act. In the case before me the offence under section 3/7 is clearly made out. In the facts and circumstances of the case I see, however no good and valid ground to grant benefit of probation to the petitioner. As regards the sentence awarded to the petitioner the Court for any adequate and special reasons can impose a sentence of imprisonment for a term of less than three months. In the present case the petitioner appears to be a petty trader and it is his first offence as such looking to the nature of the offence and the status of the petitioner and the fact that it is his first offence, I consider it just and proper that a period of 9 days imprisonment already undergone by the petitioner would meet the ends of justice. As regards the sentence of fine of Rs. 2,000/- the same is maintained. 9. The revision is thus partly allowed, and the substantive sentence awarded to be petitioner is reduced to the period already undergone by him and a fine of Rs. 2,000/- is maintained. In default of payment of fine the petitioner would under go imprisonment for a period of one and a half months as awarded by the lower appellate Court. One months time is granted to the petitioner to deposit the above fine.Revision Partly allowed. *******