JUDGMENT 1. - Instant revision impugns the order dated June 6, 1996 of the learned Special Judge, Essential Commodity Cases Jhunjhunu whereby the cognisance under Section 3/7 of the Essential Commodities Act, 1955 (for short the Act) was taken against the petitioners. 2. Few relevant facts are required to be set out at the out set. A complaint under Section 3/7 of the Act was instituted by the State of Rajasthan against the petitioners in the trial court with the averments that on Feb. 15, 1996 the Assistant District Supply Officer Jhunjhunu when inspected firm M/s. Kalpana Granites he found petitioner Kapil Gadiya in the premises of the firm. The firm illegally stored 630 ltrs. of kerosene oil in three drums and violated sections 3 and 18 of the Rajasthan Trade Commodities and Control Order 1980 which was an offence punishable under Section 3/7 of the Act. in the complaint Gopi Chand Gadiya and Samal Kishore Gadiya were shown as partners of the firm M/s. Kalpana Granite and Smt. Poonam Gadiya as proprietor of the firm whereas Kapil Gadiya as worker. On this complaint learned Judge, took cognisance against the accused petitioner as mentioned herein above. 3. It is thus not in dispute that M/s. Kalpna Granites is a partnership firm. Section 10 of the Act relates to the offences committed by firm which reads as under: "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. 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 (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 director, manager, secretary or other officer of the company such director, manager, secretary or other officer shall also 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." 4. A perusal of this section demonstrates that partner cannot be proceeded against simply on the ground that he is the partner of the firm. The prosecution must show that the partner of the firm to be prosecuted was in charge and was responsible for the conduct of the business of the firm or the offence was committed with the consent or connivance or is attributable to any neglect on the part of any partner or other person belated and the firm. 5. Mr. Khandelwal, learned counsel appearing for the petitioners canvassed that prosecution could not have been launched against the petitioners as it was not shown in the complaint as to who was in charge of the firm or the offence was committed with his consent or connivance or neglect. Reliance was placed on Kishore Lal v. State of Karnataka (1991(1) EFR 567) . Sushil Kumar Jajodia v. State (1992(2) EFR 673) and Shyam Sunder v. State of Haryana ( AIR 1989 SC 1982 ) . 6. On the other hand Mr. Goyal PP for the State supported the impugned order. 7. In Sham Sunder v. State (supra) their Lordships of the Supreme Court indicated as under: "More often it is common that some of the partners of a firm may not even be knowing of what is going on day to day in the firm. 6. On the other hand Mr. Goyal PP for the State supported the impugned order. 7. In Sham Sunder v. State (supra) their Lordships of the Supreme Court indicated as under: "More often it is common that some of the partners of a firm may not even be knowing of what is going on day to day in the firm. There may be partners, better known as sleeping partners who are not required to take part in the business of the firm. There may be ladies and minors who were admitted for the benefit of partnership. They may not know anything about the business of the firm. It would be a travesty of justice to prosecute all partners and ask them to prove under the proviso to sub-section (1) of S. that the offence was committed without their knowledge. The obligation for the accused to prove under the proviso that the offence took place without his knowledge or that he exercised all due diligence to prevent such offence arises only when the prosecution establishes that the requisite condition mentioned in sub-section (1) is established. The requisite condition is that the partner was responsible for carrying on the business and was during the relevant time in charge of the business. In the absence of any such proof, no partner could be convicted. Thus where the documents produced by the prosecution do not indicate even remotely that all the partners were doing the business of the firm and there was no other evidence on record on this aspect, it could not be said that when the offence was committed all the partners were conducting the business of the firm. Therefore, they would not be liable for conviction." 8. From the complaint itself it is evident that requisite conditions mentioned in section 10 of the Act, have not been even pleaded and in the absence of averments in the complaint that the petitioners were managing the affairs of the firm during the relevant period, they cannot be proceeded against but the learned court below took cognisance of the offence mechanically without properly appreciating the legal provisions. 9. Resultantly the revision succeeds and is hereby allowed. Impugned order of the Special Judge, E.C. Cases Jhunjhunu stands set aside. Record of the case be sent back forthwith.Petition allowed. *******