MADAN MOHAN UPADBAYA Vs. STATE OF BIHAR

JUDGEMENT

(1.) The two significant questions which fall for deter mination in this reference to the Full Bench may be precisely formulated in the following terms:- (1) Whether Section 10 (1) of the Essential Commodities Act inflexibly requires the incorporation of the words-"was in charge of and was responsible to the firm for the conduct of the business of the firm"- in all complaints against a partner of the firm for offences in contravention of the said Act ? (ii) Whether Section 10 (2) of the Act aforesaid necessarily mandates the incorporation of the allegation that the offence was committed with the consent or connivance or was attributable to the neglect on the part of the partner of the firm in the complaint itself ?

(2.) The facts may be noticed with the stricktest brevity in so far as they are relevant to the two pristinely legal questions aforesaid. The four petitioners are admittedly partners of the firm named and styled as M/s. Nalanda Trading Stores, Bakhtiarpur, carrying on the business of a cement selling agency thereat. On the basis of a complaint (Annexure 1) made by Shri Basistha Narayan Singh, General Secretary of the District Janta Party, alleging serious irregulasities against the petitioners and their firm an inquiry was apparently made and a report dated 28th of September, 1978 of the Assistant District Supply Officer, Barb, (Annex ure 2) was rendered. Pursuant thereto, Shri Devendra Kumar, Supply Inspector, Bakhtiarpur, presented a complaint (Annexure 3) in the Court of the Additional Chief Judicial Magistrate, Barb. Therein it was expressly averred that the petitioners are the partners of M/s. Nalanda Trading Stores and they are interested in the loss and profit of the business of the cement selling agency. In terms the allegation that the aforesaid business is under the direct control and supervision of the petitioners was made. Numerous allegations coming within the ambit of the offences under Sections 7, 9 and 10 of the Essential Commodities Act (herein after referred to as the Act) were enumerated in Paragraphs 2 to 9 of complaint and a prayer was made that cognizance under Sections 7, 9 and 10 of the Act may be taken against all the four petitioners.

(3.) On the 20th of March, 1979 the learned Additional Chief Judicial Magistrate, Barh, by his order of even date took cognizance against the petitioners and transferred it to the file of Shri K. P. Yerma, Sub-divisional Judicial Magis trate, for trial.