G.R. Luthra, J.
1. The present appeal of the Municipal Corporation of Delhi (hereinafter referred to as 'Corporation') is directed against the judgment dated December 6, 1976 of Shri K. B. Andley, Additional Session Judge, Delhi acquitting Des Raj and Om Parkash, respondents in respect of an offence punishable of Food Adulteration Act (for short 'the Act').
2. The respondents 2 to 5 were at the relevant time partners and were carrying on business under the name and style of M/s. Manak Chand Jai Ram Singh at 5074, Rui Mandi, Phoota Road, Sadar Bazar, Delhi. They are having a floor mill at the aforesaid premises for the manufacture of 'besan' for sale. Des Raj, respondent 1, is son of Manak Chand, respondent No. 3.
3. On March 29, 1973 at about 2.25 p.m. Prem Parkash, Food Inspector (P.W. 2) went to the aforesaid premises No. 5074, Rui Mandi, Phoota Road, Sadar Bazar, Delhi. At that time only Des Raj, respondent was present from whom the former purchased 'besan' weighing 600 grams. The said Food Inspector divided the 'besan' into three equal parts and put them separate containers and sealed them. One of the samples was handed over to Des Raj, respondent another was sent to the Public Analyst and the third one was retained by him. The Public Analyst gave report dated 7th April 1973 to the effect that the 'besan' was analysed on April 4, 1973 and that the same was adulterated on account of presence of 'kesari dal' starches to the extent of 40%. After receipt of the said report, a complaint was filed by Shri Ganga Ram, Assistant Municipal Prosecutor (P.W. 1). The complaint was directed against Des Raj respondent as seller of 'besan', respondents 2 to 5 as partners of the firm and respondent 6 as a firm. Shri J. D. Kapoor, Metropolitan Magistrate, Delhi found all the respondents guilty of the commission of the offence punishable under S. 7 read with S. 16 of the Act. However, different sentences were awarded to the different respondents. Each of Jai Ram Singh and Manak Chand respondents was sentenced to pay fine of Rs. 2,000/- and in default of payment of fine to undergo rigorous imprisonment for one year. Harmohinder Singh, respondent 5, was released on probation of good conduct under the provisions of S. 4 of the Probation of Offenders Act. Each of Des Raj and Om Parkash was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- in default of payment of which to undergo further rigorous imprisonment for six months. A sum of Rs. 1,000/- as fine was imposed upon the firm respondent 6.
4. Only Des Raj and Om Parkash respondents filed appeal in the Court of Session, while the remaining respondents did not file any appeal. It was, inter alia, urged before the learned Additional Sessions Judge, Delhi that there was non-compliance of R. 22 of the Prevention of Food Adulteration Rules (for short 'the Rules') and that, thereforee, the said respondents were entitled to acquittal R. 22 aforesaid (as it then existed) says that the quantity of sample of food to be sent to the Public Analyst/Director for analysis shall be as specified in the chart given in that rule. That chart, at the relevant time, did not specify the quantity in respect of 'besan'. 'Besan' was treated as 'cereal' vide item A.18 of appendix B of the Rules. Rule 22 specified quantity of sample as 250 grams for cereals. As by way of dividing the total quantity (of 600 Gms) purchased by the food inspector into three, the quantity in one sample came to 200 grams, it was found by the learned Additional Sessions Judge that the quantity was less than one prescribed (250 gms) by R. 22. He thereforee held that due to violation of aforesaid rule respondent was entitled to acquittal.
5. The view of the Additional Sessions Judge was then justified by a judgment of the Supreme Court in Rajaldas G. Pamnani v. State of Maharashtra : 1975CriLJ254 . The proposition of law laid down in that judgment was that provisions of R. 22 being mandatory, non-compliance caused not only infraction of the provisions but also injustice inasmuch as quantities mentioned in R. 22 were required for correct analysis and that on account of aforesaid non-compliance accused was entitled to acquittal.
But that judgment was specifically overruled by a later judgment of the Supreme Court in State of Kerala v. Alaserry Mohammed 1978) 1 FAC 145 : 1978 Cri LJ 1925. It was held that R. 22 was purely directory, that it was for the Public Analyst to see whether the quantity of the sample sent to him was sufficient or not for making necessary analysis and that if the Public Analyst had no complaint, no accused could be acquitted on the mere ground of non-compliance of R. 22. However, the acquittals, which were challenged before the Supreme Court, were not converted into convictions by way of making the following observations which occur in the concluding paragraph of the judgment :
'For the reasons stated above, we dispose of these appeals by merely laying down the correct proposition of law but do not make any consequential orders setting aside the acquittal of any of the respondents or sending back the cases to the Courts below or convicting any of them by order of this Court.'
Relying on the aforesaid judgment in subsequent cases, accused prayed for maintaining acquittal notwithstanding that they were guilty. In Ramdas Bhikaji v. Sada Nand : 1980CriLJ111 , it was held that it was never the intention of the Supreme Court that in all cases where acquittal had been recorded on the ground of non-compliance of R. 22 should not be converted into conviction and that in appropriate cases the acquittal could be set aside and conviction recorded. The result was that in that case, the Supreme Court converted the acquittal into conviction but having regard to the facts that the prosecution was started long ago in 1971, only sentence of fine of Rs. 2,000/- (and not of imprisonment) was awarded.
6. As already mentioned the present appeal is only directed against the acquittal of Des Raj and Om Parkash, respondents. The case of these two respondents is different from each other and, thereforee, case regarding each is being dealt with separately.
7. Des Raj was the actual seller of 'besan' and his guilt stands proved beyond reasonable doubt on account of 'besan' sold by him having been found as adulterated. thereforee, in view of the Supreme Court judgment : 1980CriLJ111 , the acquittal of Des Raj is liable to be converted into conviction.
8. As far as Om Parkash is concerned, the question is whether he can be held guilty on the mere ground that he happened to be a partner of the firm which was carrying on business of the manufacture and sale of 'besan' even though he was not a party to the sale. It is vicarious liability which is sought to be fastened on him. The general rule of law is that a person cannot be convicted and punished for an offence vicariously. But there are some exception. In the present case the exception is contained in S. 17 of the Act which reads as under :
'17. Offences by companies. - (1) Where an offence under this Act has been committed by a company, every person who at the time the offence 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 of the offence and shall be liable to be proceeded against and punished accordingly :
Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a Company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanationn. - For the purposes of this section -
(a) 'company' means any body corporate, and includes a firm or other association of individuals; and
(b) 'director' in relation to a firm means a partner in the firm'.
9. It is clear from the aforesaid provisions that the same applies to partnership firms also. Although in the body of the section offences relating to 'companies' and 'directors' thereof are mentioned, yet the Explanationn makes it clear that the word 'company' includes 'partnership firm' and in relation to that a 'director' shall stand for a 'partner'. It is thereforee apparent from the opening words of the aforesaid provision that so that a partner is liable, the existence of following three conditions must be proved :
(i) The partner sought to be made liable must be in charge of the partnership business.
(ii) He must be responsible to the firm for the conduct of the business of the partnership, and
(iii) The relevant time for the fulfillment of the aforesaid two conditions is the commission of the offence and not before or after the same.
In the present case, the aforesaid conditions do not stand proved. There is no evidence at all that at the time of commission of the offence, Om Parkash was in charge of or responsible to the firm for the conduct of the business of the partnership. The learned counsel for the Corporation relied upon the statement of Shri Prem Parkash, Food Inspector, to the effect that on 3rd May, 1973 when he went to deliver a copy of the report of the Public Analyst at the premises in question, he found Om Parkash and Jai Ram Singh working and selling goods at the shop. According to the said learned counsel that raised an inference that Om Parkash was also in charge of and responsible to the firm for the conduct of the business of the partnership firm. Learned counsel for proving existence of partnership relied upon the statement of Pritam Lal Chawla (P.W. 3), Inspector, Income-tax, Naya District, I.P. Estate, New Delhi, who brought the file maintained in income-tax department relating to the respondents and stated that respondents 2 to 5 were partners of respondent No. 6 firm M/s. Manak Chand Jai Ram Singh.
10. But the mere fact that Om Parkash was found working at the shop on 3rd May 1973, which was much later to the date of commission of the offence is of no relevance. That cannot prove that he was in charge of and was conducting the business of the partnership on the date of the commission of offence which was 29th March 1973.
11. Mrs. Usha Kumar, learned counsel for the appellant Corporation, relied upon a judgment of the Madhya Pradesh High Court in Sadhuram v. State : AIR1967MP122 . Following proposition of law was laid down which occurs in para 3 of the judgment :
'Once it is established that an individual is a member of a firm especially if it is small one, it would be for him to show that he had dissociated himself from the day to day conduct of the business.
In the case of a firm with two or three partners that question does not arise; every partner would be deemed responsible unless he shows that he has completely dissociated himself from the day to day business of the partnership.'
12. The net result of the aforesaid judgment is that there is a presumption that every partner is in charge of and responsible for the conduct of the business and is, thereforee, liable to be convicted and sentenced for an offence under the provisions of the Act unless it is proved otherwise. But with due respect the aforesaid proposition is erroneous. It is well settled principle of law that vicarious criminal liability cannot be attached unless all the conditions for fastening such liability are proved. It is for the prosecution to prove all such conditions and there cannot be any presumption.
13. Further the aforesaid view of the Madhya Pradesh High Court is contrary to the view expressed by the Supreme Court in Smt. Manibai v. State of Maharashtra : 1974CriLJ451 and also to the view expressed by Delhi High Court in Shri Jarnail Singh v. M.C.D. (1977) 1 FAC 186. It is, thereforee, apparent that the acquittal of Om Parkash must be maintained while the acquittal of Des Raj is to be set aside and converted into conviction.
14. The next question is as to what sentence should be awarded. Learned counsel for Des Raj prayed for grant of the benefit of provisions of S. 4 of the Probation of Offenders Act and S. 360 of the Cr.P.C. and thus releasing Des Raj on probation of good conduct. Before 1976 there was no bar under the provisions of the Prevention of Food Adulteration Act against release of offenders on probation. After 1976 a bar was created by means of incorporating S. 20AA in the provisions of Prevention of Food Adulteration Act which lays down that no offender can be released on probation unless he is of the age less than 18 years. However, the new provision is not applicable because the offence was committed in 1973 which was much before the said new provision came into force. It was held by the Supreme Court in Municipal Corporation of Delhi v. Man Mohan Lal : 1983CriLJ855 that if the offence was committed at a time when S. 20AA was not on the Statute Book, there was no prohibition against giving benefit of Probation of Offenders Act to a person convicted of an offence punishable under the Prevention of Food Adulteration Act. In Isher Dass v. State of Punjab : 1972CriLJ874 , it was specifically laid down that the benefit of provisions of Probation of Offenders Act could be given to the persons found guilty of offences under the Act.
15. In the present case offence was committed in the year 1973. Already 11 years have elapsed since the commission of the offence. Des Raj was acquitted on December 6, 1976. Since then, a period of about 8 years has passed. Having regard to all the circumstances and in the interest of justice, Des Raj should be released on probation of good conduct.
16. The result is that appeal against Om Parkash is dismissed. The appeal against Des Raj is accepted, acquittal is set aside and he is convicted of an offence punishable under S. 7 read with S. 16 of the Act. However, acting under S. 4 of the Probation of Offenders Act, instead of sentencing Des Raj at once to any punishment he will be released on his entering into a bond in the sum of Rs. 3,000/- with one surety for the like amount to appear and receive sentence when called upon to do so during the period of one year from the date of the execution of the aforesaid personal and surety bonds and in the meantime to keep peace and be of good behavior. The aforesaid personal and surety bonds shall be put in within a period of fifteen days from today and the same shall be to the satisfaction of Chief Metropolitan Magistrate, Delhi.
17. A copy of this judgment shall be sent to the Chief Metropolitan Magistrate, Delhi forthwith.
18. List this case for October 10, 1984 for ascertaining if aforesaid personal and security bonds have been furnished.
T.P.S. Chawla, J.
19. I agree.
20. Order accordingly.