Surinder Singh. J.
1. This judgment will dispose; of Criminal Miscellaneous Nos. 878-M and 877-M of 1983. both petitions filed by the same petitioner under Section 482. Criminal P.C with a prayer for quashing of two separate charge-sheets (Copy Annexure P/2V framed against him by the Judicial Magistrate First Class. Patti. vide impugned orders dated January 6. 1983(Copy Annexure P/l).
2. The facts may be briefly noticed. Petitioner Nohar Chand is a Dartner of Messrs. Varindra Asro. Chemical (India) Ltd. a firm engaged in the manufacture of fertilizers at Ludhiana. As alleged in the two First Information Reports lodged separately and registered on August 27. 1980 the Fertilizer Inspector took samples of fertilizers on November 18. 1978 from the premises of Messrs. Joginder Pal and Bros, and Messrs. Dharam Nath Surinder Kumar. Fertilizer Dealers of Kham Karan. District Amritsar. It is stated that the samples did not conform to the prescribed specifications in certain respects and were hence substandard. Messrs. Varindra Agro-Chemical (India) Ltd. Ludhiana. of which the petitioner is a partner, are stated to be the manufacturers of the fertilizers. On the basis of the First Information Reports, the petitioner was summoned as a manufacturer of the fertilizers in two separate cases by the Judicial Magistrate First Class, vide two separate orders dated January 6. 1983.
3. At the time of the arguments, it was noticed that the First Information Reports pertain not only to the petitioner as a manufacturer but also the dealers from whom the samples are alleged to have been taken. The learned Counsel for the petitioner did not therefore, press the prayer for quashing of the First Information Report as it is but made submissions regarding the prayer for quashing of the charge-sheet framed against the petitioner. The first ground of attack is that there was no prim a facie evidence placed by the prosecution on the record to show that the alleged fertilizers of which the samples were taken from the premises of the dealers hart been manufactured by the petitioner's Firm Messrs. Varindra Agro-Chemical (India) Ltd. Ludhiana. After hearing the learned Counsel for the parties. I find that the contention is sound. It is a basic principle of law that before summoning a person to face a charge and more particularly when a charge-sheet is actually framed, the Court concerned must be equipped with at least prima facie material to show that the person who is sought to be arraved as an accused is guilty of the offence as alleged against him. In the impugned order, the learned trial Magistrate made an assumption right at the outset that the petitioner was the manufacturer of the fertilizers in question. The learned Magistrate did not advert to any evidence in this behalf. The order summoning the petitioner and framing the charge against him. thus, suffers from patent illegality and cannot, therefore, be sustained.
4. The second ground of attack as stressed by the learned Counsel for the petitioner is that under the law even if the Firm of which the petitioner is a partner, could be presumed to be the manufacturer of the incriminating Fertilizer, there was no material whatsoever produced or relied upon by the prosecution to show that it was the petitioner who was managing the affairs of the Firm or was in charge of its manufacturing process. The learned Counsel has referred to the provisions of Section 10(1) of the Essential Commodities Act to highlight that only persons falling within the abovementioned categories could be proceeded against in regard to the contravention of the provisions of the Act. In support of his submission, the learned Counsel placed reliance upon a decision of this Court in Criminal Misc. No. 613-M of 1976(Bhagwan Dass v. State of Haryana) In the said case, seven partners of a Firm manufacturing Vanaspati Ghee were summoned and charged under Section 7 read with Section 16 of the Prevention of Food Adulteration Act. 1954. It was held in the said case that under the provisions of Section 17 of the Prevention of Food Adulteration Act 1954. when an offence was alleged to have been committed by a Company, it is only the person, who had been nominated to be in charge of. and responsible to the Company for the conduct of the business who should be prosecuted. It was further held that the other partners of the Firm could not be dragged into trial merely on the principle of vicarious liability when there was no evidence to show that they had anything to do with the management of the affairs of the Company. In the said case, an earlier decision of the Delhi High Court. Manohar Singh v. Municipal Corporation of Delhi. 1978 Chand LR (Cri) Delhi 43 : 1978 Cri LJ NOC 171). was also noticed and followed. The charge in that case was accordingly quashed. In view of the legal position, the decision in the said case squarely covers the facts of the present case.
5. The learned Counsel for the petitioner has focussed the beam on the mater from another angle. It is contended that according to the Scheme of the Fertilizer Control Order, a Firm which commences the manufacture of Fertilizers or its formulations. has to submit an application in Form D indicating whether the partners are qualified to carry out the manufacturing process as prescribed by the State Government. The submission is that the above circumstance shows that it is only the person responsible for the conduct of the business who is sought to be made liable for any malfeasance and not every partner of the Firm. The contention once again is quite correct and there is no effective reply to the same.
6. Another challenge to the proceedings against the petitioner is that the same were barred by limitation. It is not disputed that the occurrence in question took place on November 18. 1978 and the First Information Report was lodged against the petitioner on August 27, 1980. It is urged that under Section 468 of the Criminal P.C. the limitation for taking cognizance of an offence punishable with imprisonment for a term not exceeding one year has been prescribed as only one year. In the present case, as indicated in the charge-sheet itself. the petitioner is alleged to have contravened the provisions of the Fertilizer Control Order. 1957 punishable under Clause 13. such a contravention is triable summarily under Section 12A of the Essential Commodities Act. 1955 and is punishable with a sentence of imprisonment for a term not exceeding one year. It is. thus. submitted that apart from the fact that the alleged offence against the petitioner ought to have been tried summarily and not by means of a regular trial as envisaged by the impugned order the proceedings were in any case barred by limitation. The learned State counsel, with a view to meet this objection submitted that the punitive provision in the case of the petitioner. as mentioned in the charge-sheet is Section 7 of the Essential Commodities Act for which the punishment prescribed is up to seven years. This, however, is factually wrong. Under Section 7(1) of the Essential Commodities Act. the maximum punishment is one year and fine if the contravention is of Clause (h) or (i). Sub-section (21 of Section 3 and for other Clauses the punishment may extend to seven years' imprisonment. The charge-sheet makes no reference to any particular Clause of Section 3 and this being so the argument of the learned State counsel is not tenable.
7. In view of the facts and circumstances noticed above the framing of the charge against the petitioner in both the cases and further proceedings on the basis of these charges are nothing but an abuse of the process of Court The charge against the petitioner in both the cases is therefore, quashed so also any proceedings on the basis of these charges.