G. R. LUTHRA, J. ( 1 ) THE presnent appeal of the Municipalcorporation of Delhi (hereinatfer referred to as corporation )is directed against the judgment dated 6/12/1976 ofshri K. B. Andley, Additional Sessions Judge. Delhi acquitting Des Raj and Om Parkash, respondents in respect of anoffence punishable under Section 7 read with Section 16 ofthe Prevention of Food Adulteration Act (for short the Act" ). ( 2 ) THE respondents 2 to 5 were at the relevant tims partners and were carrying on business under the name and styleof M/s Manak Chand Jai Ram Singh ai 5074, Rui Mandi,phoota Road, Sadar Bazar, Delhi. They are having a floormill at the aforesaid premises for the manufacture of "besan for sale. Des Raj, respondent No. 1, is son of Manak Chand. respondent No. 3. ( 3 ) ON 29/03/1973 at about 2. 25 p. m. Prem Prakash. Food Inspector (PW2) went to the aforesaid premises No. 5074,rui Mandi, Phoota Road. Sadar Bazar, Delhi. At that time onlydes Raj. respondent was present from whom the former purchased besan weighing 600 grams. The sa. J Food Inspectordivided the besan into three equal parts and put them in. separate containers and sealed them One of the semples washanded over to Des Raj, respondent, another was sent to thepublic Analyst and the third one was retaind by him. Thepublic Analyst gave report dated 7/04/1973 to the effectthat the besan was analysed on 4/04/1973 and that thesame was adulterated on account of presence of kesari dal starches to the extent of 40%. After receipt of the said report, a complaint was filed by Shri Ganga Ram. Assistantmunicipal Prosecutor (PW1 ). The complaml was directedagainst Des Raj respondent as seller of besan , respondent2 to 5 as partners of the firm and respondent No. 6 as a firm. Shri J. D. Kapoor, Metropolitan Magistrate, Delhi found allthe respondents guilty of the commiss,ion of the offence punishable under lection 7 read with section 16 of the Act. However, different sentences were awarded to the different respondents. Each of Jai Ram Singh and Manak Chand respondentswas sentenced to pay fine of Rs. 2. 0001 -. and in default of payment of fine to undergo rigorous imprisonment for one year. Harmohinder Singh, respondent No 5. was released on probation of good conduct under the provisions of Section 4 ofthe Probation of Offenders Act. Each of Jai Ram Singh and Manak Chand respondentswas sentenced to pay fine of Rs. 2. 0001 -. and in default of payment of fine to undergo rigorous imprisonment for one year. Harmohinder Singh, respondent No 5. was released on probation of good conduct under the provisions of Section 4 ofthe Probation of Offenders Act. Each of Des Raj and 0mparlash was sentenced to undergo rigorous imprisonment forone year and to pay a fine of Rs. 1000. 00 in default of payment of which to undergo further rigorous imprisonment forsix months. A sum of Rsl,000- as fine was imposed uponthe firm respondent No 6. ( 4 ) ONLY Des Raj and Om Parkash respondents filed appealthe Court of Sections, while the remaining respondents didnot. file any appeal. It was, inter alia, urged before thelearned Additional Sessions Judge, Delhi that there was non-compliance of rule 22 of the Prevention of Food Adulterationrules (for short the Rules ) and that therefore, the said respondents were entitled to acquittal Rule 22 aforesaid (as it thenexisted) says that the quantity of sample of food to be sent tothe Public Aalyst Director for analysis shall be as specified inthe chart given in that rule. That chart, at the relevant time,did not specify the quantity in respect of besan was treated as cereal vide item A. 18 of appendix B of the Rules. Rule 22. specified quantity of sample as 250 gram, for cereals. As byway of dividing the total quantity (of 600 gms) purchased bythe food inspector into three, the entity in one sample cameto 200 grams, it was found by the learned Additional Sessionsfudge that the qutantity was less than one precubed (250gms) by rule 22. He therefore held that due to violation ofaforesaid rule respondent was entitled to acquittal. ( 5 ) THE view of the Additional Sessions Judge was thenjustified by a judgment of the Supreme Court in Rajaldasgurunamal Pamanani v. The State of Maharashtra, 1975 (1)F. A. C. 1 (1 ). The proposition of law laid down in that judgment was that provisions of rule 22 being mandatory , noncompliance caused not only Infraction of the provisions butalso injustice in as much as quantities mentiond in rule 22were required for correct analysis and that on account ofaforesaid non-compliance accused was entitled to acquittal. But that judgment was specifically overruled by a laterjudgment of the Supreme Court in State of Kerala etc. But that judgment was specifically overruled by a laterjudgment of the Supreme Court in State of Kerala etc. etc. v. Alaserry Mohammed etc etc. , 1978 (1) F. A. C. 145 (2 ). Itwas held that rule 22 was purely directory, that it was for thepublic Analyst to see whether the quantity. of the samplesent to him was sufficient or not for making necessary analysisand that if the Public Analyst had no complaint, no accusedcould be acquitted on the mere ground of non-compliance ofrule 22. However, the acquittals, which were challenged before the Supreme Court, were not converted into convictionsby way of making the following observations which occur inthe concluding paragraph of the judgment: "for the reason stated above, we dispose of these appeals by merely laying down the correct preposition of law but do not make any consequentialorders setting aside the acquittal of any of therespondents or sending back the cases to thecourts below or convicting any of them by anorder of this Court. "relying on the aforesaid judgement in subsequent cases,accusedprayed tor maintaining acquittal notwithstanding thatthey were guilty. In Ramdas Bhikaji Chandhari. v. Sada Nanadand others, 1979 (II) FAC 215 (3), it was held that it wasnever the intention of the Supreme Court. that in all caseswhere acquittal had been recorded on the ground of non-compliance of rule 22 should not be converted into conviction andthat in appropriate cases the acquittal could be set aside andconviction recorded. The result was that in that case, thesupreme Court converted the acquittal into cunviction buthaving regard to the facts that the prosecution was started longago in 1971, only sentence of fine of Rs. 2,000. 00 (and not ofimprisonment) was awarded. ( 6 ) AS already mentioned the present appeal is only directed against the acquittal of Des Raj and Om Parkash, respondents. . The case of these two respondents is different fromeach other and, therefore, case regarding each is being dealtwith separately. ( 7 ) DES Raj was the actual seller of besan and his guiltstands proved beyond reasonable doubt on account of besan sold by him having been found as adulterated. Therefore, inview of the Supreme Court judgment, 1979 (II) FAC 215,the acquittal of Des Raj is liable to be converted into conviction. ( 7 ) DES Raj was the actual seller of besan and his guiltstands proved beyond reasonable doubt on account of besan sold by him having been found as adulterated. Therefore, inview of the Supreme Court judgment, 1979 (II) FAC 215,the acquittal of Des Raj is liable to be converted into conviction. ( 8 ) AS far as Om Parkash is concerned, the question iswhether he can be held guilty on the mere ground that hehappended to be a partner of the firm which was carrying onbusiness of the manufacture and sale of besann even thoughhe was not a party to the sale. It is vicarious liability whichis sought to be fastened on him. The general rule of law isthat a person cannot be convicted and pimished for an offencevicariously. But there are some exceptions. In the presentcase, the exception is contained in Section 17 of the Actwhich reads as under: "17. Offence by companies. (1) Where an offenceunder this Act has been committed by a company,every person who at the time the offence wascommitted was in charge of. and was responsibleto the company for the conduct of, the business ofthe company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to the proceeded against and punished accordingly:provided, that notbing contained in this subjection shall render any such person liable to anypunishment provided in this Act if he proves thatthe offence was committed without, his knowledgeor that he exercised all due diligence to preventthe commission of such offence (2) Nothwithstanding anything contained in sub-section (1),where an offence under this Act ha.-: been committed by acompany and it is proved that the offence has been committed with the consent or connivance of, or is attributable toany neglect on the part of, any director, manager, secretaryor other officer of the company, such director, manager, secretary or other officer shall also he deemed to be guilty of thatoffence and shall be. liable i. o be proceeded against and punished accordingly. Explanation. 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 partnerin the firm". ( 9 ) IT is clear from the aforesaid provision that the sameapplies to partnership firms also. liable i. o be proceeded against and punished accordingly. Explanation. 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 partnerin the firm". ( 9 ) IT is clear from the aforesaid provision that the sameapplies to partnership firms also. Although in the body of thesection offences relating to companies and directors thereofare mentioned, yet the explanation makes it clear that theword company includes partnership firm and in relation tothat a director shall stand for a partner . It is therefore apparent from the opening words of the aforesaid provision thatso that a partner is liable, the existence of following threeconditions must be proved: (I) The partner sought to be made liable must be incharge of the partnership business. (II) He must be responsible to the firm for the conduct of the business of the parnership, and (III) The relevant time for the fulfilment of the afoesaid two conditions is the commission of the offence and not betore or afterthe same. In the present case, the aforesaid conditions do not standproved. There is no evidence at all that at the time of commission of the offence, Om Parkash was in charge of responsible to the firm for the conduct of the business of the partnership. The learned counsel for the Corporaion relied upon thestatement of Shri Prem Parkash, Food Inspector, to the effectthat on 3/05/1973 when he went to deliver a copy of thereport of the Public Analyst at the premises in question, hefound Om Parkash and Jai Ram Singh working and sellinggoods at the shop. According to the said learned counselthat raised an inference that Om Parkash was also in chargeof and responsible to the firm for the conduct of the businessof the partnership firm. Learned counsel for proving existenceof partnership relied upon the statement of Pritam Lal Chawla (PW3), Inspector, Income-tax, Naya District, I. P. Estate, Newdelhi, who brought the file maintained in income-tax department relating to the respondents and stated that respondents2 to 5 were partners of respondent No. 6 firm M/s. Manakchand Jai Ram Singh. ( 10 ) BUT the mere fact that Om Parkash was found working at the shop on 3rd May 1973, which. was much later to the date of commission of the offenceis of no relevance. ( 10 ) BUT the mere fact that Om Parkash was found working at the shop on 3rd May 1973, which. was much later to the date of commission of the offenceis of no relevance. That cannot prove that he was in chargeof and was conducting the business of the partnership on thedate of the commission of the offence which was 29/03/1973. ( 11 ) MRS. Usha Kumar, learned counsel for the appellantcorporation, relied upon a judgement of the Madhya Pradeshhigh Court in Sadhuram and others v. State through Foodinspector, AIR 1967 Madhya Pradesh 122 (4 ). Followingproposition of law was laid down which occurs in paragraph3 of the judgment: "once it is established that an individual is a memberof a firm especially if it is small one, it would befor him to show that he had dissociated himselffrom the day to day conduct of the business. In the case of a firm with two or three partners thatquestion does not arise; every partner would bedeemed responsible unless he show that he hascompletely dissociated himself from the day today business of the partnership. " ( 12 ) THE net -result of the aforesaid judgment is that thereis a presumption that every partner is in charge of and responsible. for the conduct of the business and is. therefore, liableto be convicted and sentenced for an offence under the provisions of the Act linless it is proved otherwise. But with duerespect the aforesaid proposition is erroneous. It is well settledprinciple of law that vicarious criminal liability cannot be attached unless all the conditions for fastening such liabilityare proved. It is for the prosecution to prove all such conditions and there cannot be any presumption. ( 13 ) FURTHER the aforesaid view of the Madhya Pradeshhigh Court is contrary to the view expressed by the Supremecourt in Smt. Manibai and another v. The State of Maharashtra, 1973 0 FAC 349 (5) and also to the view expressed bydelhi High Court in Shri Jarnail Singh and others v. M. C. D. and another, 1977 (1) FAC 186 (6 ). It is. therefore, apparentthat the acquittal of Om Parkash must be maintained whilethe acquittal of Des Raj is to be set aside and converted intoconviction ( 14 ) THE next question is as to what sentence should beawarded. . It is. therefore, apparentthat the acquittal of Om Parkash must be maintained whilethe acquittal of Des Raj is to be set aside and converted intoconviction ( 14 ) THE next question is as to what sentence should beawarded. . Learned counsel for Des Raj prayed for grant ofthe benefit of provisions of Section 1 of the Probation of Offenders Act and Section 360 of the Criminal Procedure Codeand thus releasing Des Raj on Probation of good conduct. Before 1976 there was no bar under the provisions of theprevention of Food Adulteration Act against release of offenders on probation. After 1976 a bar was created by meansof incorporating Section 20aa in the provisions of Prevention of Food Adulteration Act which lays down that no offender can be released on probation unless he is of the ageless than 18 years. However, the new provision is not applicable because the offence was committed in 1973 which wasmuch before the said new provision came into force. It was heldby the Supreme Court in Municipal Corporation of Delhi v. Man Mohan Lal and another, 1982 (II) F. A. C. 376 (7) thatif the offence was committed at a time when Section 20aawas not on the Statute Book, there was no prohibition againstgiving benefit of Probation of Offenders Act to a personconvicted of an offence punishable under the Prevention of Foodadulteration Act. In Ishar Dass v. The State of Punjab,1972 F. C. A. 150 (8), it was specifica!ly laid down that thebenefit of provisions of Probation of Offenders, Act could begiven to the persons found guilty of offences under the Act. ( 15 ) IN the present case offence was committed in theyear 1973. Already 11 years have elasped since the commission of the offence. Das Raj was acquitted on 6/12/1976. Since then, a period of about 8 years has passed. Having regard to all the circumstances and in the interestof justice, Des Raj should be released on probation of foodconduct. ( 16 ) THE result is that appeal against Om Prakash is dismissed. The appeal against Des Raj is accepted, acquittal isset aside and he is convicted of an offence punishable undersection 7 read with Section 16 of the Act. However, actingunder Section 4 of the Probation of Offenders Act, insteadof sentencing Des Raj at once to any punishment, he will bereleased on his entering into a bond in the sum of Rs. The appeal against Des Raj is accepted, acquittal isset aside and he is convicted of an offence punishable undersection 7 read with Section 16 of the Act. However, actingunder Section 4 of the Probation of Offenders Act, insteadof sentencing Des Raj at once to any punishment, he will bereleased on his entering into a bond in the sum of Rs. 3,0001-with one surety for the like amount to appear and receivesentence when called upon to do so during the period of oneyear from the date of the execution of the aforesaid personaland surety bonds and in the meantime to keep peace and be ofgood behaviour. The aforesaid personal and surety bondsshall be put in within a period of fifteen days from today andthe same shall be to the satisfaction of Chief Metropolitanmagistrate, Delhi. ( 17 ) A copy of this judgment shall be sent to the Chiefmetropolitan Magistrate, Delhi forthwith. ( 18 ) LIST this case for October 10, 19and4 for ascertaining. if aforesaid personal and surety bonds have been furnished.