PRAKASH CHAND JAIN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) It seems that my learned brother. Ray. J., and I are to some extent treading different routes, but en route the same destination. Both of us have agreed to allow the revision and to set aside the impugned conviction and, therefore, the sentence also.

(2.) The conviction is under Section 16 of the Prevention of Food Adulteration Act, 1954, the accused-petitioner is admittedly a partner of a Firm and the offence alleged is sale of adulterated Cumin whole. The Firm was also arraigned as an accused, but stood discharged at the charge-framing stage as no charge was framed against it. The obvious and irresistible conclusion is, to borrow from the provisions of Section 245 and Section 246 of the Code of Criminal Procedure, that there was no ground for presuming that the Firm committed any offence and that no case against the Firm was made out.

(3.) A Firm is a Company, and a Partner is its Director within the meaning of Section 17 of the Prevention of Food Adulteration Act (hereinafter 'the Act' for short), as the Explanation to that Section expressly enunciates. That Section 17, quoted in extenso by Ray, J., provides, as do the corresponding and analogous provisions of various other cognate legislations, like Section 10 of the Essential Commodities Act, 1955), that where an offence under this Act is committed by a Company or a Firm, any person, whether a Director, Partner, Manager, Officer or Servant, who was, at the time of occurrence, in charge of and responsible to the Company or the Firm for the conduct of its business, shall also be, as if vicariously, liable to be prosecuted and punished. But the sine qua non for the operation of the section to rope in such a one is the commission of the offence by the Company or the Firm. Where, as here, the Firm, though arraigned as a co-accused, was discharged and, therefore commission of any offence by it stands not proved, the conditions precedent for the application of the Section, namely, commission of offence by the Firm, squarely falls through and the Section can no longer show its head. I would have thought this proposition to emanate irresistibly from the opening words of Section 17(1). But the three-Judge Bench decision of the Supreme Court in C.V.Parekh, AIR 1971 SC 447 : (1971 Cri LJ 418) and the later two-Judge Bench decision in Sheoratan Agarwal, AIR 1984 SC 1824, following C. V. Parekh (supra) with explanatory amplification and construing the analogous provisions of Section 10 of the Essential Commodities Act, 1955, having taken the same view, I can no longer propound the same as my own, but must accept it as the law of the land.