V. ESWARAIAH, J. ( 1 ) THE appellants are the accused Nos. 1 and 2 The respondent is the State of Andhra pradesh, represented by its Assistant Director of Agriculture, Vinukonda, Guntur District. The complaint has been filed under section 190 (1) (a) of Code of Criminal procedure read with Clause 13 (1) (a) of fertilizer Control Order, 1985, and Section 7 (a) (ii) of the Essential Commodities Act, against the accused Nos. 1 and 2 before the court of Special Judge under Essential commodities Act (Sessions Judge), Guntur. Accused No. 1 is M/s. Shaw Wallace and company, Madras, represented by its representative, M. V. Subba Rao, who is the regional Sales Executive. M. V. Subba Rao is also made as accused No. 2. ( 2 ) IT is the case of the prosecution that accused No. 1 is the manufacturing firm in fertilizers at Madras and distributing the same from Guntur branch. Accused No. 2 is in-charge of Guntur branch. P. W. 4 is the dealer doing business in chemical fertilizers. On 22-08-1994, P. W. 1, the Agricultural officer, Vinukonda, who is the Fertilizer inspector under the Control Order has drawn fertilizer sample of the Superphosphate 16% from the shop of P. W. 4, manufactured by accused No. 1, and sent for analysis to fertilizer Control Order Laboratory, ananthapur. The Fertilizer Analyst, ananthapur, after analysis reported that the sample is not according to the specification and it contains only 15. 13 water soluble Super phosphate as against 16. 00%. Thus the deficit is by (-) 0. 87 and therefore the sample is sub- standard. It is stated that P. W. 1 has taken the samples as per the provisions contained in fertilizers Control Order, 1985 (for short the control Order ) from the stitched bags of the manufacturer. The enquiry of the Assistant director of Agriculture, Ananthapur, is said to have revealed that there is a deficiency in fertilizer and it is sub-standard in nature. ( 3 ) P. W. 4 stated that accused No. 1, firm, supplied the Super Phosphate and the regional Office of accused No. 2 admitted that the stocks were supplied to P. W. 4. ( 3 ) P. W. 4 stated that accused No. 1, firm, supplied the Super Phosphate and the regional Office of accused No. 2 admitted that the stocks were supplied to P. W. 4. Accused No. 1 has requested for an opportunity to explain in person and as the explanation is not satisfactory a complaint has been filed for selling and manufacturing the sub-standard material of fertilizer on the ground that it is an offence under the Control order. Accordingly, a charge-sheet has been filed by P. W. 3. Admittedly, M/s. Shaw wallace and Company is a company registered under the Companies Act but not a firm as stated in the complaint. Under section 10 of the Essential Commodities Act (for short the Act ), if the offences are committed by the Company, the person in- charge of and was responsible to the company for the conduct of the business of the company as well as the company are liable to be punished for the contravention unless such person proves that the contravention took place without his knowledge or that he has exercised all due diligence to prevent such contravention. Admittedly, the fertilizer supplied to P. W. 4 is by M/s. Shaw Wallace and Company and if that be so, it is not known as to why the prosecution has failed to prosecute the company as well as the person in-charge of the company, who was responsible to conduct the business of the company. ( 4 ) GENERALLY, the responsible persons, who conduct the business of the company, are its managing Director or Board of Directors but not the Salesman or the Regional Sales executive. There is no evidence to show that accused No. 2 is a person responsible to conduct the business of the company. Conducting the business of the company means to manage the affairs of the company but not the persons, who are responsible to conduct the sales of its products. When an offence is said to have been committed by the company, the responsible persons, who are conducting the business of the company, as well as the company are not made as accused by the prosecution. But, only the Regional sales Executive of the company is made as the accused, as if he was responsible to the company for conducting the business of the company. But, only the Regional sales Executive of the company is made as the accused, as if he was responsible to the company for conducting the business of the company. The company cannot be represented by its Sales Executive if he is not a Managing Director or one of the persons managing the affairs of the company. The prosecution is launched against accused no. 2. Accused No. 2 is a person working in the company and therefore it cannot be said that he is responsible for the supply of the sub-standard fertilizer. ( 5 ) UNDER Clause 19 of the Control Order, corresponding to Old Clause 13 (1) (a) of the control Order, there are certain restrictions on the manufacture, sale and distribution of fertilizers. No person shall himself or by any other person on his behalf manufacture for sale, sell, offer for sale, or exhibit for sale or distribute any fertilizer, which is not of prescribed standard. The Court below found accused Nos. 1 and 2 guilty of the offence under Clause 19 (1) (a) (b) (v) of the Control order read with Section 7 (a) (ii) of the essential Commodities Act. Accused No. 1, represented by accused No. 2, is not the manufacturer but he is only a Sales Executive. No doubt, the accused No. 1 is also liable for punishment. But, in the instant case, the manufacturer is not made as one of the accused and the stockiest i. e. , P. W. 4 is also not made as one of the accused. P. W. 4 and accused No. 2 stand on the same footing to the effect that if at all any offence has been committed it is by the manufacturer. If the manufacturer, Sales Executive as well as the stockist are made as the accused, all of them are liable for punishment. But, in the absence of launching of prosecution against the manufacturer, it cannot be said that accused no. 2 is responsible for the sale of the substandard fertilizer. ( 6 ) THERE is no evidence to show that accused No. 2 was appointed by the Shaw wallace Company, manufacturer of the fertilizer, in consultation with the Central government holding that accused No. 2 is responsible for non-compliance of the provisions of the Control Order as contemplated under Clause 24 of the Control order. ( 6 ) THERE is no evidence to show that accused No. 2 was appointed by the Shaw wallace Company, manufacturer of the fertilizer, in consultation with the Central government holding that accused No. 2 is responsible for non-compliance of the provisions of the Control Order as contemplated under Clause 24 of the Control order. ( 7 ) NO doubt, P. W. 1 is an Inspector under the Control Order, who is competent to lift the samples. Clause 28 of the Control Order deals with the power of the Inspectors to seize or detain any fertilizer in respect of which he has reason to believe that a contravention of the Control Order has been or being or is about to be committed. Apart from the procedure contemplated under the control Order, the provisions of the Code of criminal Procedure relating to the search and seizure, so far as they may apply to searches and seizures under the Control order applies. Admittedly, in the instant case no panchnama was conducted while drawing the samples as admitted by p. W. 1 in his cross-examination. He has stated that the has drawn the samples from several shops earlier but only in this case he did not prepare any mediatornama, the reason being that in the shop of P. W. 4 nobody else were present except the shop owner when he has drawn the samples. He has also admitted that adjacent shops were also open but he did not make any attempt to call anybody to be present for preparing the mediatornama when he had drawn the samples from the shop of P. W. 4. Under Section 100 (4) of the code of Criminal Procedure before making a search, the officer or other person empowered to search and seize shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitants of the said locality is available. Admittedly, no attempt has been made in the instant case to call any independent mediators while searching or drawing the samples from the shop of P. W. 4. It is not the case of the prosecution that they need not take samples in the presence of mediators under a panchnama and the prosecution has been following the process of drawing of samples in the presence of the mediators. It is not the case of the prosecution that they need not take samples in the presence of mediators under a panchnama and the prosecution has been following the process of drawing of samples in the presence of the mediators. In the instant case no panchnama was conducted and the samples were not drawn in the presence of the mediators as contemplated under sec. 100 (4) of the Code of Criminal Procedure. ( 8 ) AS against the aforesaid back ground, a suspicion is created on the conduct of the fertilizer Inspector and other statements of p. Ws. 1 to 4 also render suspicion and thus non-joining of independent witnesses in this case to witness the process of taking the samples and preparing of the papers required to be prepared during the process of taking the samples is rendered fatal to the prosecution case. ( 9 ) FOR the aforesaid reasons, the judgment of the Special Judge for Essential commodities Act (Sessions Judge), Guntur, is unsustainable and liable to be set aside. ( 10 ) ACCORDINGLY, the Criminal Appeal is allowed, setting aside the conviction and the sentence imposed on accused Nos. 1 and 2. Accused Nos. 1 and 2 are acquitted and the fine amount, if any, paid by them shall be refunded to them.