1. This is an application for quashing the order dated the 25th of May, 1973 passed by the Sub-divisional Magistrate, Buxar taking cognizance.

2. On the 24.04.1973 the Assistant District Supply Officer, Buxar made a surprise check of the firm of M/s. Laxmi Ram Amar Nath Prasad, which is a retail licensee under the Bihar Vanashpati Dealers Licensing Order, 1967. He noticed that the stock register made a mention of 163 tins of 16.5 Kilograms each whereas on physical verification there were only 161 tins. So far as the mustard oil tins were concerned he found that the stock register indicated 272 tins whereas on physical verification the stock was found to be 276 tins. It was also noticed that the dealer was issuing cash memos showing price of one tin of Dalda as Rs. 110.50 paise whereas he was obtaining price at the rate of Rupees 130.00 per tin. Accordingly, the Assistant District Supply Officer made a complaint saying that the licensee M/s. Laxmi Ram Amarnath Prasad had been violating provisions of the Bihar Vanaspati Dealers Licensing Order, 1967 and was cheating the purchasers and, accordingly, recommended prosecution under Section 7 of the Essential Commodities Act and Sec. 420 of the Indian Penal Code (hereinafter referred to as the Code). The column of accused in the complaint petition, however, recited the names of (a) Amarnath Prasad, Proprietor of the firm (b) Rameshwar Prasad, Munib of the firm and (c) Kailash Ram, Munib of the firm. The learned Sub-divisional Magistrate, Buxar took cognizance against M/s. Laxmi Ram Amar Nath Prasad for the two offences and transferred the case to a Munsif Magistrate for disposal. Processes were issued against the three petitioners, namely, Amarnath Prasad, Rameshwar Prasad and Kailash Ram and the present petition has been filed on their behalf.

3. It has been argued by Mr. Prem Shankar Sahay on behalf of the petitioners that the prosecution of the three petitioners cannot be sustained in law by reason of the fact that the facts disclosed in the complaint petition do not constitute an offence committed by them and, secondly, provision of S.10 of the Essential Commodities Act 1955 is a bar for the prosecution of the proprietor. The aforesaid section says that if the person contravening any order made under Sec.3 is a company, every person who, at the time the contravention was committed, was in charge of, 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. In Rabindra Nath Dutta V/s. State of Bihar (1971 BLJR 1005) the complaint petition did not contain the aforesaid allegations as required by Sec.10 and as such the order taking cognizance of the case was quashed. Above being the law, the petitioner Amarnath Prasad, in respect of whom the complaint petition does not say that he was in charge of and was responsible to the company for conduct of the business of the company cannot be prosecuted.

4. It will, however, be noticed that cognizance has been taken against the firm and not against the petitioners. That in law the firm is liable to be prosecuted follows from Sec.10 of the Essential Commodities Act and as stated above cognizance has been taken against the firm M/s. Laxmi Ram Amar Nath Prasad. As such, the order dated the 25th of May, 1973 is not assailable.

5. It was argued for the petitioners that the written report does not spell out an offence under Sec. 420 of the Code inasmuch as the names of the persons cheated nor the names of witnesses in whose presence the offence was committed, have been disclosed. The hard fact, however, is that the complaint petition does speak of the manner in which the cash memos were being issued showing an inflated price and the facts alleged do constitute the offence of cheating. Mr. Prem Shanker Sahay, however, invited my attention to the defence on the point set out in paragraph 15 of the petition. It is stated there that prevailing rate of sale of Dalda t