GANPAT LALL GUPTA AND OTHERS Vs. STATE

JUDGEMENT

(1.) This Rule is directed against an order passed by a learned Metropolitan Magistrate, Calcutta, in G R. Case No. 1366 of 1981 framing charges against the present petitioners who are the partners of firm. On Trading Corporation of 12 Amartala Street, Calcutta, for an offence under Sec. 7(l)(a)(ii) of the Essential Commodities Act. It appears that a Sub-Inspector of the Enforcement Branch of Police made a report under section II of the said Act alleging that the said firm was a dealer. In ground nut seed and it was detected on the 8th June 1981 that the petitioners did not observe certain condition of the licence issued under the West Bengal Essential Commodities Order of 1978 which constitute an offer se punishable under Sec. 7(1)(a)(iii) of the Act. It was contended on behalf of the petitioners that the proceeding pending before the learned Magistrate was liable to be quashed on two grounds in the first place, the petitioners who were partners could not be prosecuted. In the absence of the firm and, secondly, the report under section 11 of the Essential Commodities Act did not disclose any detail to show that any of the petitioners were in charge of the business of the firm.

(2.) The learned Advocate for the petitioners has urged that section 10 of the Essential Commodities Act no doubt makes the partner of firm vicariously liable for offence committed by the firm but since an agent cannot be prosecuted without the principal, the prosecution of the petitioners in the instant essential is illegal. In support of this contention he has referred to a Bench decision of this Court in Kailash Prasad Musaddi Vs. The State 1984(1) CHN 26. In that case the offence was committed by a firm but only a partner and the Manager were charged and in such situation their lordships held that the licencee, that is, the firm itself, must have to be prosecuted along with any other person who may be vicariously liable. As this was not done, the entire proceeding was quashed. This can no longer be held to be good law in view of the ruling of the Supreme Court in Sheoraian Agarwal & anr Vs. State of Madhya Pradesh, AIR 1984 SC 1824. In that case, the Managing Director and the Production Manager of a Public Limited Company were prosecuted for an offence under Essential Commodities Act and it was contended on behalf of the accused persons that they could not in law be prosecuted unless the company itself was prosecuted. This contention was rejected by the High Court of Madhya Pradesh and also on appeal by special leave by the Supreme Court. Rejecting this contention, the learned Judges of the Supreme Court had observed that section 10 does not state that if the person contravening an order made under Essential Commodities Act is a company, prosecution of the Directors, Officers and servants of the company or other persons is precluded unless the company itself is prosecuted and there was no statutory compulsion that the person. In charge or an officer of the company may not be prosecuted unless he be ranged with the company itself. Their Lordships went even further to hold that each or any of thorn may be separately prosecuted or along with the company. In this state of law, there cannot be any manner of doubt that the petitioners can very well be prosecuted provided other conditions are fulfilled even though the firm itself has not been proceeded against.

(3.) To elaborate the second contention, the learned Advocate for Hit petitioners has drawn my attention to the report made by the police under section 11 of the Essential Commodities Act which only indicated that the petitioner Ganapal Lal Gupta was the person in charge of the firm in question while the other petitioners were its partners. It was argued that a bad statement that Ganapat Lal Gupta was the person in change was of enough to show that he was guilty of the contravention and in this connection reliance has been placed upon a Division Bench decision of this Court. In Krishna Kumar Dalmia Vs. State, 1981(2) CHN 301. In that case their Lordships were dealing with several criminal revision applications, someone which related to processes issued against the Directors of certain compact under Sec. 14A of the Employees' Provident Fund and Family Pensions Act, and it was held by their Lordships that although liability might extend not only to the company for an offence committed under the Act but also to other persons vicariously but only under conditions laid down in the Act. It was pointed out by their Lordships that in that particular case there was no material to show that the Directors were in charge of the business or had any other control of the day to day business of the company and accordingly they could not be made liable for the offence alleged to have been committed by the company. This ruling hardly comes to the aid of the preset petitioners as it is not an authority for the proposition that a complaint under section 11 of the E.C. Act must contain all details to show how the petitioner, Ganapat Lal Gupta was in charge of the firm and that it was not enough to state that he was in charge of it. Therefore, so far as the petitioner No. 1 Ganapat Lal Gupta, is concerned, there is absolutely no ground to quash the proceeding.