M R SHERVANI AND ORS Vs. STATE

JUDGEMENT

(1.) This petition and the connected petition No. 2275 of 1965 purport to be Under Section 561-A of Code of Criminal Procedure and have been made by the same Petitioners and may conveniently be disposed of together. There is a sugar factory at Neoli which is owned by the Commercial Industrial Corporation now known as Shervani Sugar Syndicate. One Sri B.R. Dubey is the General Manager of the aforsaid Factory. Sri B.P. Saxena Petitioner No. 8 is the Finance Secretary of the aforsaid Commercial Industrial Corporation and the other Petitioners are the Directors thereof. The Deputy Director, Directorate of Sugar and Vanaspati, Government of India, New Delhi issued an order on 3-3-1959 directing the Neoli Sugar Factory to supply 605 Mds. of sugar to M/s Dhani Lal Jagannath, Bagla Building, Nayaganj, Kanpur and on 12-3- 1959 aforesaid Deputy Director directed the General Manager Neoli Sugar Factory to supply (505 Mds. of sugar to M/s Ganesh Prasad Durga Prasad of Shanker Patti at Kanpur. Copies of the aforesaid orders were sent to the Commercial Industrial Corporation also. Two cases for contravention of the aforesaid orders were initiated against the General Manager, Neoli Sugar Factory, the Commercial Industrial Corporation now known as Shervani Sugar Syndicate and the Petitioners. The Petitioners' case is that there is no evidence to bear out that the alleged contravention of the aforesaid orders was committed with their consent or connivance or that it could in any way be attributed to any neglect on their part and as such no case whatsoever was made out against them. It may at this stage be mentioned with advantage that the petitions under consideration have not been filed either by the Commercial Industrial Corporation or by Sri Dubey. A counter affidavit has been filed on behalf of the State. It has been contended on behalf of the State that Sub-section (2) of Section 10 of the Essential Commodities Act, 1955 on which reliance has been placed on behalf of the Petitioners is not at all attracted to the instant cases, inasmuch as the aforesaid sub-section comes into play when an offence under the Act has been committed by a company whereas in the instant cases the company has merely contravened an order made Under Section 3 and as such the cases fell under Sub-section (1) of Section 10 referred to above. In order to appreciate the contentions advanced on behalf of the parties Section 10 may be quoted. It reads as below:

(2.) Assuming for the sake of argument that Sub-section (2) is not at all attracted to the present cases it may first be considered as to whether any case Under Sub-section (1) has been made out against the Petitioners. It will be noticed that under the aforesaid sub-section guilt has been fastened, inter alia, on every person who, at the time of the contravention, was incharge of and was responsible to the company for the conduct of the business of the Company. It is significant that the conjunction used is (and) and not (or) that is the persons deemed to be guilty of the contravention must be incharge of the Company for the conduct of the business of the Company and must be responsible to the Company for the conduct of the business of the Company. It is only on the co-existence of both the conditions that liability of guilt is entailed. It has, therefore, to be seen as to whether the Petitioners have either been alleged or proved to have been incharge of and responsible to the company for the conduct of its business. The complaints filed against the Petitioners have been annexed to the petition and a reference to them will indicate that no such allegation has been made against the Petitioners. Paragraph 4 of the complaints reads as below:

(3.) It will be noticed that it is only accused No. 12 (Sri Dubey) who was stated to be incharge of and responsible to the company for the conduct of its business. Accused Nos. 2 to II who are the Petitioners before this Court were not stated to be incharge of and responsible to the Company for the conduct of its business. Thus on the allegations made in the complaints no case is made out against the Petitioners Under Sub-section (1) of Section 10 referred to above.