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1988 DIGILAW 282 (CAL)

SHRILAL BAJORIA v. STATE

1988-07-14

A.C.SENGUPTA, J.N.HORE

body1988
( 1 ) THIS is an application in revision for quashing a proceeding being D. E. B. G. R. Case No. 23 of 1983 under Section 7 (1) (ii) of the Essential Commodities Act, 1955 for violation of paragraph 3 (1) and 3 (2) of the West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977 pending before the learned Judge, Special Court, Midnapore. ( 2 ) THE three petitioners are the partners of M/s. Shri Krishna Oil Mill at Tantigaria within Kotawali Police Station, Midnapore. On 27. 4. 83 some Officers of D. E. B. , Midnapore along with police personnel held a raid in the business premises of the said firm at Tantigaria. On physical verification the raiding party found a stock of 185 tins of Vanaspati in the godown of the said firm but the same was not displayed in the stock-cum-rate Board. The petitioners were prosecuted under Section 7 (1) (a) (ii) of the Essential Commodities Act for violation of the provisions of para. 3 (2) of the West Bengal Declaration of Stocks and Prices of the Essential Commodities Act. ( 3 ) MR. Roy, learned Counsel appearing for the petitioners, has not pressed the petition so far as the petitioner No. 3 Keshardeo Bajoria is concerned. He was found actually transacting the business. It has been urged that there is not even a whisper nor a shred of evidence nor anything to show, a part from the presumption drawn by the complainant, that there is any act committed by petitioner Nos. 1 and 2, the other partners of the firm, from which a reasonable inference can be drawn that they could also be vicariously liable. It has been contended that there is no allegation whatsoever nor there is any material to show that the case of petitioner Nos. 1 and 2 falls, within the scope of sub-section (1) or sub-section (2) of Section 10 of the Essential Commodities Act, 1955. It has been contended that there is no allegation whatsoever nor there is any material to show that the case of petitioner Nos. 1 and 2 falls, within the scope of sub-section (1) or sub-section (2) of Section 10 of the Essential Commodities Act, 1955. ( 4 ) SUB-SECTION ( 1) of Section 10 of the Essential Commodities Act, 1955 provisions that if a person contravening an order made under Section 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. Sub-section (2) lays down that notwithstanding anything contained in Sub-section (1) where an offence under this Act has been committed by a 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 Directors Manager, Secretary or other Officer of the Company, such Director, Manager, Secretary or other Officer are also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. The Explanation provides that for the purposes of this section 'company' includes a firm and 'director' in relation to a firm means a partner in the firm. It is clear, therefore, that the firm M/s. Shri Krishna Oil Mill can be proceeded against for the alleged violation of paragraph 3 (1) 3 (2) of the West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977 but a partner qua partner is not liable. In order to make any partner of the firm vicariously liable the requirements of either Sub-section (1) or Sub-section (2) are to be fulfilled. In other words, it must be shown that the partner concerned was in charge of and was responsible to, the firm for the conduct of the business of the firm or that the offence has been committed with his consent, connivance or is attributable to any neglect on his part. Now, there is no whisper in the First Information Report or the charge-sheet or in the statements of witnesses recorded under Section 161 Criminal Procedure Code that petitioner Nos. Now, there is no whisper in the First Information Report or the charge-sheet or in the statements of witnesses recorded under Section 161 Criminal Procedure Code that petitioner Nos. 1 and 2 who were aged 75 years and 73 years respectively at the material time were in any way in charge of, and were responsible to, the firm for the conduct of the business of the firm at the time when the contravention is alleged to have been committed nor there is any averment that the contravention was committed with their consent or connivance or is attributable to any neglect on their part. It can be said, therefore, that no case against the petitioner Nos. 1 and 2 has been made out ex facie and the proceeding against them are liable to be quashed. In Municipal Corporation of Delhi vs. Ram Kishan Rohtagi and others reported in A. I. R. 1983 S. C. 67, the Supreme Court has held that proceedings against an accused, the initial stages can be quashed only if on the face of the complaint and the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegation in the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceeding in exercise of its powers under Section 482. In that case, the complaint was filed against the Company, its Directors and the Manager. So far as the Directors were concerned, there was not even a whisper nor a shred of evidence nor anything to show, part from the presumption drawn by the complainant, that there was any act committed by the Directors from which reasonable inference can be drawn that they could also be vicariously liable. The Supreme Court has held that these circumstances, therefore, it can be said that no case against the Directors has been made out ex facie on the allegations made in the complaint and the proceedings against them were rightly quashed by the High Court. ( 5 ) FOR the foregoing reasons, we allow the revisional application, quash the impugned proceedings and make the Rule absolute so far as the petitioner Nos. 1 and 2 Shrilal Bajoria and Prahladrai Bajoria are concerned. ( 5 ) FOR the foregoing reasons, we allow the revisional application, quash the impugned proceedings and make the Rule absolute so far as the petitioner Nos. 1 and 2 Shrilal Bajoria and Prahladrai Bajoria are concerned. The impugned proceeding will continue against petitioner No. 3 Keshardeo Bajoria and the Rule is discharged so far as the petitioner No. 3 is concerned. The Lower Court's records be sent down at once. A. C. Sengupta, J. I agree. Rule made absolute.