F.S. Gill, J.
(1) The Municipal Corporation of Delhi filed a complaint under section 7 read with section 16 of the Prevention of Food Adulteration Act 1954 against Basanta Lal, Rajasthan Shudh Masala Supply Bhandar, Kanhaya Lal, Madan Lal, Dwarka Parshad, Rameshwar Dayal and Kailash Chand. It was alleged that the food Inspector had taken sample of chillies powder from Basanta Lal at the premises of the firm. After the necessary formalities one of the bottles containing the sample was sent to the public Analyst who reported that the contents were adulterated as there as presence of 1.17% of common salt an extraneous matter. The vendor-partner Basanta Lal and the other five partners were sent up for trial,
(2) The evidence produced by the complainant was completed. Thereafter the parties were heard on the question of charge. Sh.J.D. Kapur, the learned Metropolitan magistrate ordered that charges against all the seven accused be framed under section 7 read with section 16 of the prevention of Food Adulteration Act for sellling adulterated chillies powder. This order was passed on 18th March, 1976. All the accused persons filed the present petition under section 482 of the code of criminal procedure, 1973 and Article 227 of the Constitution of India for quashing the order directing the framing of the charge by the Metropolitan Magistrate. I have heard the learned counsel for the parties.
(3) Sh. Mathur, the learned counsel for the petitioners, has submitted that section 17 of the Prevention of Food Adulteration Act, 1954 envisages that in the case of a company every person, who at the time the offence is committed has to be provided as in charge of and responsible to the conduct of the business of the company. In the present case it is submitted that the sample was taken from Basanta Lal, one of the partners and that petitioners No. 3 to 7 who were of course, the partners of the firm were not in charge of and responsible to the conduct of the business and, thereforee, there was absolutely no prima facie case made out against them for framing any charge. In answer to this contention, the learned counsel for the corporation has submitted that he does not rely on sub-section (1) of section 17 of the Act, but places reliance on sub-section (2) which is in these terms :-
'(2)Any company may, by order in writing authorise any of its, directors or managers (such manager being employed mainly in a managerial or supervisory capacity) to exercise all such powers and take all such steps as may be necessary or expedient to prevent commission by the company of any offence under this Act and may give notice to the local (health) Authority, in such form and in such manner as may be prescribed, that it has nominated such director or manager as the person responsible Along with the written consent of such director or. manager for being so nominated.'
(4) It is submitted that there had been connivance of petitioner Nos. 3 to 7 in the commission of the offence and there had also been neglect on their part. For connivance an evertact on the part of these petitioners has to shown. The learned counsel for the corporation has not been able to refer to any evidence produced in the case where these petitioners had colluded with Basanta Lal or the commission of the offence. Mere conjecture cannot take the place of proof. There is absolutely no evidence of connivance against any of these five partners.
(5) The other argument advanced by Sh. Malhotra, the learned counsel for the Corporation, is that there had been neglect on the part of these partners which can be at atributed to them in selling the adulterated article. Even for negligence there has to be evidence. The statements of the witnesses produced by the Corporation have been read out. There is no evidence to prove that these petititioners had been negligent in the conduct of the business of the firm. What particular part has been assigned to any partner is not proved. So far as Basanta Lal is concerned he was carrying on the business and in fact he had vended the article in question. There is thus complete absence of evidence regarding the neglect on the part of petitioners Nos. 3 to 7.
(6) Taken from any angle there is no evidence as far as Kanhaya Lal, Madan Lal, Dwarka Parsad, Rameshwnr Dayal and Mailash Chand petitioners-accused are concerned. Reference has been made to a judgment concerned of this court given by me in Smt. Suman Kanodia v. Union of India and others 1977(1) F.A.C.161. This related to the question of liability of a partner, who is in charge of and responsible to the firm for the conduct of the business. On that score, the learned counsel of the Corporation has not laid any stress, as petitioner Nos. 3 to 7, were not in charge of or responsible for the conduct of the business.
(7) As there is no prima facie case against the five accused mentioned above, no charge, thereforee, could be framed against them. The order of the Metropolitan Magistrate, dated 18th March, 1976 qua these five accused is, thereforee, not sustainable and is accordingly quashed.
(8) The learned counsel for the petitioners has submitted that the charge against other petitioners be also quashed as rule 22 of the Prevention of Food Adulteration Rules provides for a specific quantity, which should be taken at the time of lifting the sample, but the quantity taken in the present case was less and, thereforee, there could be no proper analysis for arriving at the correct result. He has submitted that where lesser quantity had been taken, the view of the Supreme Court, which had been binding for three years and as embodied in Rejaldea Gurunamal Pamanani v. The State of Maharashtra. 1975(1) F.A.C .1 should befollowed. He further submits that this view has been modified in the subsequent judgment of the Supreme Court in State of Kerala etc. v. Alaserry Mohammad etc. 1978(1) F.A.C. 145 but this judgment has given certain advantage to the old cases including pending ones. He submits that the same advantage be granted in the present case. Each case has to be considered on its own merits. Let this point be argued before the trial court at the appropriate stage. No observation is thus made here and the contention is kept wide open for decision.
(9) CR. M. (M) No. 104 of 1976 is, thereforee, partly accepted in the above terms. The parties are directed to cause their appearance before the trial court on 30th November, 1978. P.N.C.