In the absence of an allegation against the accused as contemplated under section 10 of the Essential Commodities Act, the prosecution of individuals for contravening an order made under section 5 of the Act is not maintainable when the offender is a company.

Muneshwari Sahai, J.

1. These two applications, namely, Cr. Misc. Nos.3710 and 3713 of 1975, have been heard together as they arise out of the same case one Ganesh Pandey is the sole petitioner in Cr. Misc. No.3/10/75. He is the manager of firm of Petrol Pump known as bhagwanjee Jai Jinendra caltex, Chapra (hereinafter to be referred to as the firm ). There are four petitioners in the other case. Petitioners 1 to 3 are the partners of the firm. The petitioners alleged that petitioner no.4 is not in any way concerned with the firm. In both the cases the petitioners had prayed for the quashing of an order dated 17th October, 1973 passed by the Sub-divisional Magistrate, chapra, by which the learned Magistrate had taken cognizance against them under section 7 of the Essential Commodities Act. The petitioner are alleged to have contravened clause 3 of the Kerosene (Restriction oa Use)Order, 1966 Order No.114 of 1969 ).

2. The case against the petitioner was instituted on the report of the inspector, District Crime Branch, Chapra to the Chapra Town P. S. The inspector alleged that the owners and agents of the firm were mixing kerosene oil with diesel with a view to make illegal profit. This was in contravention of the Kerosene (Restriction on Use) Order, 1966 which was punishable under section 7 of the Essential Commodities Act. Investigation followed and charge-sheet was submitted by the police against the petitioners under section 7 of the Essential Commodities Act. The learned Magistrate after perusing the charge-sheet took cognizance against the petitioners on 17th October, 19/3.

3. Learned counsel for the petitioners has contended that in absence of any allegation as contemplated under section 10 of the Essential Commodities act against the petitioners none of them can be prosecuted for the contravention of the Kerosene (Restriction On Use) Order, 1966. It is submitted that nirmal Kumar Jain (Petitioner no.4) in Cr. Misc. No. , 3713/75 has no concern whatsoever with the firm. He happens to be son of petitioner no.3 Jharilal jain and he was also present at the firm premises when the sample of the diesel was obtained. That, however, it is contended, cannot by any stretch of imagination make him liable in this case. In support of his submission learned counsel has produced before me the licence granted to the firm under the Bihar Motor Spirit and High Speed. Diesel Oil Dealers Licensing Order, 1965. The names of the partners of the firm have been mentioned in the licence itself and the name of Nirmal Kumar Jain (petitioner no.4) in Cr. Misc.3713/75 does not find place there. I need not refer to some assessment orders of the Income-Tax Department where as well Nirmal Kumar jain has not been shown as partner of this firm. In my opinion, in face of such overwhelming evidence it cannot seriously be contended that petitioner no.4 is also partner of the firm. Learned counsel for the State has also not attempted to contend that Nirmal Kumar Jain is also a partner of the firm. The prosecution of Nirmal Kumar Jain, therefore, in this case is clearly misconceived and an abuse of the process of the Court.

4. Petitioners 1 to 3 are admittedly the partners of the firm and the sole petitioner in Cr. Misc.3710/75 is also the manager of the firm. Although the firm has not been impleaded as an accused in this case, the allegations made in the first information report as also the charge sheet unmistakenably shown that the firm was the real offender. This position has not been challenged on behalf of the State. Sec.10 of the Essential commodities Act provides, inter alia, that if the person contravening an order made under section 3 of the Act is a Company every person, who, at the time of the contravention was committed, was incharge 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 of the contravention and shall be liable to be proceeded against and pu