Honble GUPTA, J.– This petition is directed against the order dated 3.6.98 passed by the learned Chief Judicial Magistrate, Jodhpur whereby he framed charges against the petitioners along with respondents no. 2 to 5 u/S. 7/16 of the Prevention of the Food Adulteration Act, 1954. (2). Mr. Bhandari, learned counsel for the petitioners, pointing out that in the complaint it is not alleged that the Petitioners were incharge of and responsible to the conduct of business of M/S. Gulab Oil products, Fateh Nagar, contended that charges could not be framed against them. He pointed out that even in his statement P.C.Harsh, Food Inspector does not say that the petitioners were incharge of and responsible to the conduct of the business of the firm. Relying on the cases of Municipal Corporation of Delhi vs. Ram Kishan Rohtagi (1), State of Haryana vs. Brij Lal Mittal (2), L.P. Gupta vs. State of Raj. (3), P. R. Neelkantham vs. State of Raj. (4), Smt. Barfi Devi vs. State of Raj. (5), Ghewar Chand vs. State of Raj. (6) and M/S Rallis India Ltd. vs. State of Raj (7), he submitted that the proceedings against the petitioners should be quashed. (3). The learned Public Prosecutor, on the other hand, argued that by the document Ex. P-18 it is borne out that the petitioners were the partners of the firm m/s Gulab Oil Products, and therefore, the charges have been rightly framed against them. (4). I have considered the above arguments. In the complaint it is not stated that the petitioners were the partners of the firm M/s. Gulab Oil Products on the date of sale of Oil and that they were incharge of and were responsible to the conduct of the business of the firm. The allegations against the two petitioners are contained in para no. 14 of the complaint wherein only it has been stated that the Commercial Taxes Officer, Special Circle, Udaipur has intimated that Gopilal and Satya Narain were the partners of the firm. (6). Section 17 of the Preventions of Food Adulteration Act, 1954 reads as follows:- ``17. The allegations against the two petitioners are contained in para no. 14 of the complaint wherein only it has been stated that the Commercial Taxes Officer, Special Circle, Udaipur has intimated that Gopilal and Satya Narain were the partners of the firm. (6). Section 17 of the Preventions of Food Adulteration Act, 1954 reads as follows:- ``17. Offence by companies (1) where an offence under this Act has been committed by a company- (a)(i) the person, if any, who has been nominated under sub-Section (2) to be in charge of, and responsible to, the company for the conduct of the business of the company (hereinafter in this Section referred to as the person responsible), or (ii) Where no person has been so nominated, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company; and (b).The company, shall be deemed to be guilty of the offence 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 provided in this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence. (2). Any company may, by order in writing, authorise any of its directors or managers (such manager being employed mainly in a managerial or supervisory capacity) to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission by the company of any offence under this Act and may give notice to the Local (Health) Authority, in such form and in such manner as may be prescribed, that it has nominated such director or manager as the person responsible, along with the written consent or such director or manager for being so nominated. Explanation- Where a company has different establishment, or branches or different unit in any establishment or branch, different persons may be nominated under this sub- Section in relation to different establishments or branches or units and the person nominated in relation to any establishment, branch, or unit shall be deem- ed to be the person responsible in respect of such establishment, branch or unit. (3). The person nominated under Sub-Section (2) shall, until- (i). (3). The person nominated under Sub-Section (2) shall, until- (i). further notice cancelling such nomination is received from the company by the Local (Health) Authority; or (ii). he ceases to be Director or, as the case may be; Manager of the company ; or (iii). he makes a request in writing to the Local (Health) Authority, under intimation to the company, to cancel the nomination (which request shall be complied with by the Local (Health) Authority), whichever is the earliest, continue to be the person responsible; Provided that where such person ceases to be a Director or, as the case may be, Manager of the company, he shall intimate the fact of such cesser to the Local (Health) Authority, Provided further that where such person makes a request under cla- use (iii), the Local (Health) Authority shall not cancel such nomination with effect from a date earlier than the date on which the request is made. (4). Notwithstanding anything contained in the foregoing Sub-Sections, where an offence under this Act has been committed by a com- pany and it is proved that the offence 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, (not being a person nominated under Sub- Section (2) 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 purpose of this (a). `company means any body corporate and includes a firm or other association of individuals; (b). `director, in relation to a firm, means a partner in the firm; and (c). ` manager, in relation to a company engaged in hotel industry, includes the person in charge of the catering department of any hotel managed or run by it.) (6). A reading of the Section makes it clear that besides the company, the persons, who at the time when the offence was committed was incharge of and responsible to the conduct of the business of the company, are liable to be prosecuted and convicted whenever offence is committed under the Prevention of Food Adulteration Act by a company. Vide Explanation, a partnership firm is inclu- ded in the definition of company. Vide Explanation, a partnership firm is inclu- ded in the definition of company. Under sub-Section (2), a company may authorise any of its Director or Manager, in the case of a partnership firm to one or more partners, to exercise all such powers, any may give notice to the Local (Health) Authority that it has nominated such Director or Manager, partner in the case of a firm, as the person responsible alongwith the written consent of such Director, or Manager, partner for being so nominated. (7). In the instant case, it is not the case for the prosecution that the firm M/s. Gulab Oil Products had nominated any of the petitioners as the person incharge of and responsible to the conduct of the business and an intimation was sent to the Local (Health) Authority to that effect. Therefore, the case does not fall in sub clause(i) of clause (a) of Sub-Sec. (1) of Sec. 17 of the Act. (8). It has not been stated in the complaint that the two petitioners were incharge of and responsible to the conduct of the business of the firm M/s. Gulab Oil Products, Fateh Nagar and even in the statement of Shri P.C. Harsh it has not come that the petitioners were incharge of and responsible to the conduct of the business of the firm, therefore, the case does not come under sub-clause (ii) of cla- use (a) of Sub- Section, (1) also. (9). The prosecution case is based only on the document Ex.p.-18 which is a letter dated 24.7.96, written by the Sales Tax Officer to the Chief Medical Officer, Jodhpur that Gopilal and Satya Narain were the partners of the firm m/s. Gulab Oil products. Fateh Nagar. This letter was written in reply to the letter of the Chief Me- dical Officer date. 4.7.96. That letter has not been brought on record. On this letter, at the most, it can be said that on 24.7.96 Gopilal and Satya Narain were registered as partners of firm m/s. Gulab Oil Products with the Sales Tax deptt. This letter does not prove that on the date, refined Soyabin Oil was sold by the firm m/s Gulab Oil products. Gopilal and Satya Narain were its partners, and that they were incharge of and responsible to the conduct of the business of the firm. This letter does not prove that on the date, refined Soyabin Oil was sold by the firm m/s Gulab Oil products. Gopilal and Satya Narain were its partners, and that they were incharge of and responsible to the conduct of the business of the firm. Shri P. C. Harsh admits that he did not know as to whether the firm was registered as partnership firm under the Partnership Act or that the two petitioners were admitted to the partnership after the date of the sale the Oil. Thus , there is no material on record on which it can even prima facie be said that the two petitioners were the partners of the firm on the date of the sale of the Oil to M/s. Surajmal Dhariwal and Co. and they were incharge of and responsible to the conduct of the business of the firm. (10).The charge cannot be sustained even on the basis of deeming provision of Sec. 17. True it is that under the Partnership Act, 1932 a firm or partnership is not a legal entity but is merely an association of persons agreed to carry on business, and it is only a collective name for individuals, carrying on business in partnership. It is also true that the essential characteristics of a firm is that each partner is a representative of other partners, and each of the partners is an agent as well as a principal,he is a principal to the extent that he is bound by the acts or omissions of other partners. But we are concerned with a criminal liability under penal provision and not a civil liability. The penal provision must be strictly construed in the first place. Secondly, there is no vicarious liability in criminal law unless the statute takes that also within its fold. vide ; Shyam Sunder vs. State of Haryana. That was a case under the Essential Commodities Act. (11). Though Section 10 of the said Act is not identical to Section 17 of the Prevention of Food Adulteration Act, yet the relevant provisions in both the enactments are not very different. vide ; Shyam Sunder vs. State of Haryana. That was a case under the Essential Commodities Act. (11). Though Section 10 of the said Act is not identical to Section 17 of the Prevention of Food Adulteration Act, yet the relevant provisions in both the enactments are not very different. Their lordships interpreting Sec. 10 of the E.C. Act held that the requisite condition for the offence is that during the relevant time the partner was responsible for carrying on the business and was in charge of the business and in the absence of any such proof, no partner could be convicted. It was further held that 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. In the instant case, as there is no allegation in the complaint that at the time of commission of the offence the two petitioners were the incharge of and responsible to the conduct of the business of the firm, the deeming provision of sub-Section (1) cannot be applied. (12). The Apex court in the case of Municipal Corporation, Delhi vs. Ram Kishan (supra) upheld the order of the High Court quashing the proceedings against the Directors of the company as the complainant in the complaint did not attribute any criminal liability to them. In that case though it was alleged in the complaint that accused no. 4 to 7 were the Directors of the company but as there was not even whisper nor a shred of evidence nor anything to show that they were incharge of and responsible to the conduct of the business of the company, it was held that they could not be prosecuted on the principle of vicarious liability. (14). So also, the Apex Court in the case of State of Haryana vs. Brij Lal (supra) upheld the order of quashing the proceedings u/Sec. 25 of the Drugs and Cosmetics Act, 1940 against the respondent Director of the company on the ground that there was no allegation in the complaint that he was incharge of and also responsible to the company for the conduct of its business. Sec. 8 of the Drugs & Cosmetics Act is also not very different to Sec. 17 of the P.F. Act. (14). This court in the case of P.R. Neelkantham (supra) observed that mere giving names of Directors and Salesman in the complaint is not enough . Requisite allegations have to be made for their prosecution. It was held that before applying deeming provision of Sub-Section(!) of Section 17 of the said Act, it has to be alleged that a particular person was nominated or particular persons were in-charge of and were responsible to the company for the conduct of the business of the company and it is only when there is such an allegation that a person can be prosecuted and punished and in the absence of such allegations no prosecution can be launched. (15). In other cases cited by the learned counsel for the petitioners also similar view has been taken and it has been held that if there are no allegations in the complaint that the accused was incharge of and responsible for the conduct of the business of the firm the prosecution could not be launched against him. (16). The burden to prove the charge of an offence always lies upon the prosecution. As there is no averments in the complaint that the two petitioners were nominated as the persons responsible for the conduct of the business or that in fact they were incharge of and responsible to the conduct of the business of the firm, charges could not be framed against them. (17). As a result of the foregoing discussion, the charges framed against the two petitioners are liable to be quashed. (18). Consequently, the petition succeeds. The order qua the petitioners framing charges against them is set aside and the charge framed against them are hereby quashed. The petitioners shall stand discharged. However, it is made clear that if the prosecution at any stage produces evidence which satisfies the trial court that the petitioners had committed the offence, the court can take cognizance against them and try them along with other accused. (See Para 19 in the case of Municipal Corporation, Delhi vs. Ram Kishan (supra).