JUDGMENT 1. - Instant Criminal Misc. Petition impugns the order dated 7.2.1998 of the learned Judge, Special Court, Essential Commodities Act, Jaipur. Whereby the application submitted by the petitioner for recalling the order of cognizance and for discharging her of the offence 'under Section 3/7 of the Essential Commodities Act, 1955 was dismissed. 2. Facts are not in dispute. Vijay Beniwal (Since dead) and present petitioner Smt Saraswati Beniwal have been the partners of a partner-ship firm M/s. National High Way Filling Station, Narsinghpura, Ajmer Road. Jaipur. At the time of inspection Vijay Beniwal was present at the Petrol Pump. The licence of the Petrol Pump was issued in the name of Vijay Beniwal and Smt. Saraswati Beniwal. It has not been established from the record that petitioner Smt. Saraswati Beniwal was present at the Petrol Pump or she took active part in supervising the said Petrol Pump. 3. But after investigation a charge-sheet was filed against Vjjay Beniwal and Smt. Saraswati Beniwal before the learned Court below. Vijay Beniwal had died on 4.7.1997. 4. In Kishor Lal v. State of Rajasthan, 1991 (1) FER 567 ; Sushil Kumar Jajodia v. State, 1992 (3) FER 673 and Shyam Sunder v. State of Haryana, AIR 1989 SC 1982 it was propounded that prosecution could not have been launched against a partner who had not been shown in the complaint taking active participation in supervising the firm. In Shyam Sunder v. State of Haryana (supra) their Lordship of the Supreme Court propounded 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. 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 ail the partners were conducting the business of the firm. Therefore, they would not be liable for conviction." 5. Placing reliance upon Shyam Sunder v. State of Haryana this Court in the case of Gopichand Gadiya and ors. v. State of Rajasthan, reported in RCC. Feb., 1998 page 140 has laid down that if complaint does not establishes the requisite condition that each of the partners was carrying on the business at the relevant time, the said partner could not have been convicted. 6. Coming to the case on hand admittedly, Smt. Saraswati Devi, is the partner of the firm, but the prosecution has failed to establish even remotely that petitioner Smt. Saraswati Devi took active part in supervising the said firm. From the record, it is revealed that it was Vijay Beniwal who was present at the time of inspection at the Filling Station. Therefore, no cognizance under Section 3/7 of the Essential Commodities Act, 1955 could have been taken against the accused petitioner Smt. Saraswati Beniwal. 7. In view of what has been discussed above, the impugned order of the learned court below as well as the order of taking cognizance stand set-aside and the petitioner Smt. Saraswati Beniwal stands discharged from the offence under Section 3/7 of the Essential Commodities Act, 1955. 7. In view of what has been discussed above, the impugned order of the learned court below as well as the order of taking cognizance stand set-aside and the petitioner Smt. Saraswati Beniwal stands discharged from the offence under Section 3/7 of the Essential Commodities Act, 1955. The record of the case be sent forthwith. *******