IMPORTANT POINT
For making the partners of a firm liable to be prosecuted burden of proof lies upon the prosecution to show that the contravention i.e. offence has been committed with their consent or connivance or is attributable to any neglect on their part.

JUDGMENT

S.R. Bhargava, J. - Heard Sri V.P. Srivastava for revisionist and Sri P.S. Adhikari for State:

This revision against summoning order under Section 319 Cr. P.C. has arisen in the following circumstances:

It is not disputed for the purposes of this revision that a partnership firm constituted by partner revisionists Smt. Parvati Devi and Sri Ram Niwas, and one Ashok Kumar, working and carrying on business in the name of M/s. Ram Niwas Ashok Kumar at Mestonganj, Rampur, is whole sale dealer of food-grains. It is alleged by the prosecution that on 19th July 1984 in a raid by a team of Food department headed by the then Regional Food Officer, D.S. Rana, shortage of food-grains as compared to the stock register was detected and it was further found that in the cash memos names and full addresses of the purchasers were not mentioned at the business premises of the said firm. Santosh Kumar son of one of the partners was present at the premises, he was arrested. Ultimately after investigation charge sheet for offences punishable under Section 3 read with Section 7 of the Essentials commodities Act due to alleged contravention of U.P. Foodgrains Dealers (Licencing and Restriction of Hearding) order 1976 and U.P. Essential Commodities (Display of prices and stock and control of supply and Distribution) order 1977 was submitted against said Santosh Kumar in the court of Special Judge (Economic offences), Rampur. During evidence it was discovered that the revisionists and one Ashok Kumar are partners of the firm. Learned Special Judge placed reliance on the proviso of Section 10 (1) of the Essential commodities act and held that prima facie case is made out against the revisionists and they are liable to punishment unless they prove that the contravention took place without their knowledge or they exercised due diligence to prevent such contravention. He was further of the view that the provisions of Section 10 (1) & (2) make out that the partners of the firm are prima facie responsible for the contravention of the Orders unless anyone of them proves that it was without his authority and knowledge and he exercised due diligence to prevent the same. Learned Special Judge observed that burden has been shifted on the partners of the firm to prove their innocence. Hence the learned Special Judge summoned the revisionists under Section 319 Cr. P.C.

2. If during enquiry of trial it appears to a court from, the evidence that some person or persons not being accused in the case committed offence, the court can summon such person or persons for being tried along with the accused already before the court, for such offence he or they appear to have committed. A bare reading of Section 319 Cr. P.C. makes it clear that persons not being prosecuted can be summoned by enquiry or trial court only if the evidence adduced before such court makes out a prima facie case that such persons also committed offence. Hence the essential requirement for summoning under Section 319 Cr. P.C. is a prima facie case constituting an offence.

3. Then the only question which requires determination in this case is whether on the basis of evidence that revisionists are partners in the firm can make out a prima facie case of contravention of aforesaid orders punishable under Section 3 read with Section 7 of the Essential Commodities Act.

4. For ascertaining the liability of the partners of a firm for offence punishable under the Essential Commodities Act it would be useful to consider Section 10 of the said Act which runs as under:

"10. Offences by companies:- (1) if the person contravening an order made, under Section 3 is a company, every person who, at the time the contravention was committed, was in charge and was responsible to the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in th