JUDGMENT Bhawani Singh, J.-The appellants have a grievance against the judgment of Special Court for Kangra, Hamirpur, Una and Mandi Divisions dated 15-12-1986 in case No. 11-3/85 whereby they have been convicted for violation of Himachal Pradesh Commodities Price Marking and Display Order, 1977 (for short Commodities Order, Order, 1977) and sentenced to undergo simple imprisonment for three months with a fine of Rs. 200 each and in default of the payment of fine to further undergo simple imprisonment for 15 days. 2. Let the brief facts of this case be stated thus : The appellants are carrying on the business of karyana merchants at Amb in Una District. They are partners of Firm M/s. Om Prakash Raj Kumar. On 3-9-1985, at about 2.30 p.m., Inspector Kartar Chand alongwith Tarsem Lal and Inspector Roshan Lal, Had Kishan and Ashok Kumar, checked the shop of the appellants and found that the appellants had not displayed the stock list of the commodities being sold at the shop. It was also found that the stock registers in relation to karyana articles like dal, gram, sugar etc. had not been maintained properly in accordance with the requirement of the Display Order and that there was deficiency of 14 quintals of sugar, 4 quintals 70 Kgs. of wheat, Maida and Suji, 2 quintals 55 Kgs. of pulses in the stock as per the entries recorded in the Stock Register maintained by the Firm. 3. Noticing the aforementioned defalcations, the cash memo (Ex. PA) and other documents relating thereto were taken into possession and the appellants were found to have violated Clause (3) (a) of the Display Order, 1977 and condition 3 (a) of the licence issued under clause (34) of the Licensing and Control Order, 1981. The result was that a complaint was lodged with the police, Police Station, Amb, on which a case for the commission of offence under section 3 read with section 7 of the Essential Commodities Act, 1955 (for short Act, 1955) was registered. The First Information Report (Ex. PG/1) was registered on the basis of the information (Ex PG) and investigation started. Stock Registers (Ex. PC to Ex. PE) were taken into possession Besides statements of large number of witnesses were recorded. Finally on completion of investigation, challan against the accused was filed in the Court. 4. The First Information Report (Ex. PG/1) was registered on the basis of the information (Ex PG) and investigation started. Stock Registers (Ex. PC to Ex. PE) were taken into possession Besides statements of large number of witnesses were recorded. Finally on completion of investigation, challan against the accused was filed in the Court. 4. Notice of the accusation under section 251 of the Code of Criminal Procedure was given to the accused on 23-12-1985 to which they pleaded not guilty and claimed to be tried. It has been explained by them in their examination under section 313 of the Code of Criminal Procedure that appellant Om Prakash was not present at the shop at the material time although he came there after the preparation of the entire documents It was also explained that the stock list was in Urdu language which was tendered to Kartar Chand (P.W.1) but the same was not taken into possession. Qua the deficiency in the stock, it was explained that cash memos regarding the sale of the articles had already been issued. Regarding statement (Ex. PB) by Om Prakash appellant, it has been stated that the same was not executed on the day of the said. It was actually executed on September 5, 1985 and was anti-dated as 3-5-1985. It is also explained that this statement was got under the impression that the appellants would also be let off like many others in such like cases and, therefore, this statement was got and not given voluntarily. It is admitted by the appellants that the name of the Firm is M/s Om Prakash Raj Kumar and they are the partners carrying on wholesale-cum-retail business at Amb 5. After the trial of the case the Special Judge found the appellants guilty of contravening Clause (3) (a) of the Himachal Pradesh Commodities Price Marking and Display Order. 1977 only and punished them as aforesaid. Both the appellants have been found not guilty for any contravention of Clause 4 of the Himachal Pradesh Trade Articles (Licensing and Control) Order, 1981. It was found that the appellants failed to display the list required under the aforesaid order in the shop, in Devnagari script in Hindi. 6. 1977 only and punished them as aforesaid. Both the appellants have been found not guilty for any contravention of Clause 4 of the Himachal Pradesh Trade Articles (Licensing and Control) Order, 1981. It was found that the appellants failed to display the list required under the aforesaid order in the shop, in Devnagari script in Hindi. 6. Perusal of the evidence on record discloses that the whole thrust of the prosecution has been to indicate that it was appellant Om Prakash who was present at the shop at the particular time and it was he in whose presence the inspection of the shop was carried out and it was Om Prakash who gave statement (Ex. PB) to the inspecting team On the other hand the case of the appellants is that appellant, Om Prakash, was not present at the shop at the time of the inspection. 7. Appellant Raj Kumar in his statement under section 313 of the Code of Criminal Procedure has also stated that at the relevant time appellant Om Prakash was not present in the shop although he has admitted his presence in the shop during the course of inspection. 8. The question now to be examined is whether the prosecution has been able to establish satisfactorily that the appellants have committed the offence under Clause 3 (a) of the Commodities Order, 1977. Before examining this aspect of the matter, it is necessary to see whether the present complaint against the appellants can be initiated in the light of the provisions of section 10 of the Act of 1955 as finding on this aspect is material and influences the subsequent aspect of the case conclusively Further more, examination of this part of the ca& is fundamental as this plea, though taken by the Counsel appearing for the appellants before the Special Judge, has not been answered in the judgment. 9. Section 10 of the Act, 1955 deals with offences by companies. It is reproduced for the facility of reference as under : "Section 10. 9. Section 10 of the Act, 1955 deals with offences by companies. It is reproduced for the facility of reference as under : "Section 10. Offences by companies.—(1) If the 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 : Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention. (2) Notwithstanding anything contained in sub-section (i), 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 director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to 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 partner in the firm." 10. It is evident from the perusal of this provision that unless the firm is prosecuted and is proved to have committed the offence, persons connected with the firm on the ground that they are incharge of and responsible to the firm for the conduct of the business, cannot be proceeded against. The prosecution has, therefore, first to prove that the offence has been committed by the firm and then the second requirement is that the said offence has been committed with the consent or connivance of or is attributable to the neglect on the part of any such partner. Looking to the present case from this angle, it appears that the matter was initiated against the firm by way of a complaint to the police and the police challan has also been filed against the firm. Looking to the present case from this angle, it appears that the matter was initiated against the firm by way of a complaint to the police and the police challan has also been filed against the firm. Later on, the prosecution appears to have lost track of the same and proceeded only against the appellants. In my opinion, this is a fundamental snag in the case of the prosecution and the appellants cannot be prosecuted in the absence of the firm M/s. Om Prakash Raj Kumar (See State of Kerla v. Noveen Chandran M. Soni, Partner M/s. Soni Harilal and Co. Ernakulam, 1978 Cr LJ 105), In these circumstances, it cannot be examined as to whether the appellants were incharge of and responsible to the company for the conduct of its business since the first condition for the applicability of this provision has not been complied with. Therefore, irrespective of the conclusion, on evidence, that the prosecution has failed to prove these conditions as well, the initiation of the case against the appellants falls for lack of support as envisaged under section 10 of the Act, 1955. In AIR 1971 SC 447, State of Madras v. C.V. Parekh and another, the apex Court bad an occasion to examine the provisions of this Section. In this case, the Court said as under : "It was urged that the two respondents 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 and for thus contravening the provisions of Clause 5 of the Iron and Steel (Control) Order. This argument cannot be accepted because it ignores the first condition for the applicability of section 10 to the effect that the person contravening the order must be a company itself. In the present case, there is no finding either by the Magistrate or by the High Court that the sale in contravention of Clause 5 of the Iron and Steel (Control) Order was made by the company. In fact, the company was not charged with the offence at all. The liability of the persons in charge of the company only arises when the contravention is by the company itself. In fact, the company was not charged with the offence at all. The liability of the persons in charge of the company only arises when the contravention is by the company itself. Since, in this case, there is no evidence and no finding that the company contravened Clause 5 of the Steel (Control) Order, the two respondents not be held responsible." 11. This decision was followed by the High Court of Gujarat in State of Gujarat v. Chandulal Jethalal and others, 1980 (21) GLR 353 and the learned Judge was also of the opinion that in the absence of the prosecution of the Company, any Director, Manager, Secretary or other officer of the Company, cannot be proceeded against and the sine qua non for the initiation of such like cases is that the responsibility of the Company has first to be established and then the involvement of the others incharge thereof and responsible for the conduct of the business has to be examined. Even otherwise, the prosecution has further failed to establish also that the appellants or any of them was incharge of the business or responsible therefor at the particular time. No evidence has been led on this important ingredient of the offence. From the nature of the offence, the whole attempt of the prosecution has been to demonstrate that Om Prakash appellant was available at the shop when it was inspected and all the proceedings, by the checking Inspector, were conducted during this time and it was during this time that statement (Ex. PB) was also given by appellant Om Prakash. Nothing further than this has been brought on the record Looking this aspect as well, it has also not been established conclusively that it was actually Om Prakash appellant who was present at the shop It has been explained by him that he was ill and came to the shop at a later stage His absence has also been stated by his co-appellant Shri Raj Kumar and there is no reason to disbelieve this version of the appellants. The result, therefore, is that the whole edifice of the prosecution version as to the presence of Om Prakash appellant at the shop at the relevant time falls to the ground. The result, therefore, is that the whole edifice of the prosecution version as to the presence of Om Prakash appellant at the shop at the relevant time falls to the ground. As against appellant Raj Kumar, the prosecution has not adduced any evidence as the simple case of the prosecution has been that it was Om Prakash who was present at the shop at the relevant time. 12. Appellant Om Prakash has appeared as his own witness in defence. He had explained his absence in his examination under section 313 of the Code of Criminal Procedure. Therefore, the prosecution should have cross-examined him as to his presence in the shop on the day of the inspection. Not a single question has been put to him. Consequently, it can be said that there is no cogent and convincing evidence on the record to show that either both the appellants or anyone of them were incharge at the relevant time and so responsible for the conduct of the business. In these circumstances, it is certain that the conviction of the appellants cannot be maintained and the same is liable to be set-aside. 13. There is another small aspect of the matter touching the issue relating to clause (3) (a) of the Order, 1977. The same is reproduced as under: "3. Every dealer shall from the commencement of this order s— (a) in respect of the commodities specified in Column 3 of Schedule I, display conspicuously in the form prescribed in Schedule III during the hours of business at a place as near to the entrance of his business premises as possible a list of price and opening stocks in Devnagari script in Hindi; and (b) * * * * * Provided further that in the case of any commodity which is out of stock instead of writing the price thereof in the list, the words OUT OF STOCK shall be written in block letters against that commodity. * * * * * Provided further that the conditions of display of opening stock shall not apply to the retail dealers." 14. The objection is the failure of appellant Om Prakash to comply with this order. The explanation of the appellant is that he had done it and the same was displayed in Urdu’ as this language is known to them. The objection is the failure of appellant Om Prakash to comply with this order. The explanation of the appellant is that he had done it and the same was displayed in Urdu’ as this language is known to them. The learned Special Judge has not agreed with this explanation observing that the appellant knew Hindi as well as number of documents have been written in Hindi. Appellant Om Prakash states that he had given this document to the checking Inspector but he did not take it into possession. Inspection of record discloses that majority of the papers have been written by appellant Om Prakash in Urdu. He appears to have knowledge and craze for writing in Urdu Therefore, it cannot be said that his explanation is not genuine. Further, it indicates absence of mens tea on the part of the appellant in committing the offence involved in the present case. Even to the Public Prosecutor, the infraction involved was quite petty and technical. This is why an application under section 321 of the Code of Criminal Procedure was moved for the withdrawal of the case on this basis, though the same was rejected by the learned Special Judge. It is pertinent to see that the prosecution has also not put any question to appellant Om Prakash pointing out that no such display list, written in Urdu, was ever presented to the Inspector at the time of checking. 15. In view of the observations as to the application of section 10 of the Act, 1955, it is not necessary to examine the argument relatable to the execution of Ex. PB. 16. The sum total of the aforesaid discussion is that the appellants cannot be convicted as the prosecution has failed to bring its case within the permissible legal parameters and the result, therefore, is that there is merit in this appeal and the same is accordingly allowed. The conviction and sentence imposed on the appellant is set aside and they are acquitted of the charge. The bail bonds and surety bonds, if any, executed by the appellants at any stage of this case are hereby discharged. Appeal allowed.