PADAM CHAND JAIN Vs. STATE

JUDGEMENT

(1.) The petitioner (Padam Chand Jain) is the father of Mukat Raj Jain, who has preferred this Criminal Revision against his conviction under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter called the Act). The son (Mukat Raj Jain), who was a major but under 21 years at the time of the commission of the offence, was dealt with under Section 4 of the Probation of Offenders Act and directed to bereleased on executing a bond in the sum of Rs. 2,000 for keeping good conduct for one year on, condition that he would appear in court to receive the punishment as and when required; in case he failed to execute the requisite bond he had to undergo R.I. for one year. The father (petitioner) was sentenced to undergo R.I. for six months and to pay a fine of Rs. 1,000 and in default of payment of fine to undergo further R. I. for six months; the father filed an unsuccessful appeal before the learned Additional Sessions Judge (Shri P. K. Bahri).

(2.) The only fact that has to be noticed for the purpose of this Criminal Petition is that Mukat Raj Jain sold a sample of Haldi Sabat for analysis to the Food Inspector (M. S. Bahral), which was found to be adulterated. This part of the case concerning the son has not been disputed.

(3.) So far as the father is concerned it was contended that he was only a' partner with his son and since he was not actively participating in the business but was only a sleeping partner he could not be convicted under Section, 17 of the Act. Noticing the prior decisions including some decisions of the Supreme Court (particularly Smt. Manibai v. State of Maharashtra, 1973 FAC 349) (1) V. D. Misra, J. held in Jarnail Singh v. M.C.D. (1977 (1) F.A.C. 186) (2) that before a partner could be made liable with the help of Section 17 of the prevention, of Food Adulteration Act it was incumbent on the prosecution to prove that the partner was incharge of and responsible for the conduct of the business at the time the offence was committed. In other words a bare statement that a person was a partner of the firm could not make the partner liable under Section 17 of the Act. The learned Magistrate who tried the case in the first instance (Shri J. D. Kapur) seems to have overlooked the above legal position and found the father (petitioner Padam Chand Jain) guilty by invoking Section 17 of the Act. A perusal of his judgment will show that though he considered that the partnership deed dated 5th January 1973 "has not been proved beyond doubt" and was also "unregistered". The very term in the partnership deed, which enabled the father to inspect the books of accounts of the business (despite his being described as a sleeping partner in the said partnership deed), coupled with the licence of the shop being in the name of Padam Chand Jain with sales tax registration also in his name led to the "inevitable and inescapable conclusion that the accused Padam Chand was responsible for the conduct of the affairs of the shop and he just created a partnership firm with his son who was still minor". In, fact there was no evidence to show that Mukat Raj Jain was a minor at the time of the partnership; his age has been given as 19 years in the partnership deed, a recital which the learned Magistrate ebviously overlooked. It may also be noticed that the age given by Mukat Raj Jain when examined by the trial court under section 313 Criminal Procedure Code . was 22 years in 1976 which is consistent with the age given in the said partnership deed. The further observations of the learned Magistrate, however, would indicate even more clearly his thinking : "The consequence of any unlawful activity done by this firm (sic) and he was conscious of this fact that he executed this partnership deed. He therefore, cannot escape from the liability for the activities done at the shop by his son as well as his partner Mukat Raj Jain" (emphasis added). Despite the manner in which the learned Magistrate has expressed himself it seems fair to state that he held both the father and son to be partners of the firm and on account of their being such partners and the kind of association that the father had with the partnership, as it was possible to spell out from the terms of the partnership (in the aforesaid manner) both of them were guilty under Section 7 read with Section 16 of the said Act.