S. Rangarajan, J.
(1) The petitioner (Padam Chand Jain) is the father of Mukat Raj Jain, who has preferred this Criminal Revision against his conviction under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter called the Act). The son (Mukat Raj Jain), who was a major but under 21 years at the time of the commission of the offence, was dealt with under Section 4 of the Probation of Offenders Act and directed to be released on executing a bond in the sum of Rs. 2,000 for keeping good conduct for one year on, condition that he would appear in court to receive the punishment as and when required; in case he failed to execute the requisite bond he had to undergo R.I. for one year. The father (petitioner) was sentenced to undergo R.I. for six months and to pay a fine of Rs. 1,000 and in default of payment of fine to undergo further R. I. for six months; the father filed an unsuccessful appeal before the learned Additional Sessions Judge (Shri P. K. Bahri).
(2) The only fact that has to be noticed for the purpose of this Criminal Petition is that Mukat Raj Jain sold a sample of Haldi Sabat for analysis to the Food Inspector (M. S. Bahral), which was found to be adulterated. This part of the case concerning the son has not been disputed.
(3) So far as the father is concerned it was contended that he was only a' partner with his son and since he was not actively participating in the business but was only a sleeping partner he could not be convicted under Section, 17 of the Act. Noticing the prior decisions including some decisions of the Supreme Court (particularly Smt. Manibai v. State of Maharashtra, 1973 Fac 349 Misra, J. held in Jarnail Singh v. M.C.D. (1977 (1) F.A.C. 186 that before a partner could be made liable with the help of Section 17 of the prevention, of Food Adulteration Act it was incumbent on the prosecution to prove that the partner was in charge of and responsible for the conduct of the business at the time the offence was committed. In other words a bare statement that a person was a partner of the firm could not make the partner liable under Section 17 of the Act. The learned Magistrate who tried the case in the first instance (Shri J. D. Kapur) seems to have overlooked the above legal position and found the father (petitioner Padam Chand Jain) guilty by invoking Section 17 of the Act. A perusal of his judgment will show that though he considered that the partnership deed dated 5th January 1973 'has not been proved beyond doubt' and was also 'unregistered'. The very term in the partnership deed, which enabled the father to inspect the books of accounts of the business (despite his being described as a sleeping partner in the said partnership deed), coupled with the license of the shop being in the name of Padam Chand Jain with sales tax registration also in his name led to the 'inevitable and inescapable conclusion that the accused Padam Chand was responsible for the conduct of the affairs of the shop and he just created a partnership firm with his son who was still minor'. In, fact there was no evidence to show that Mukat Raj Jain was a minor at the time of the partnership; his age has been given as 19 years in the partnership deed, a recital which the learned Magistrate obviously overlooked. It may also be noticed that the age given by Mukat Raj Jain when examined by the trial court under section 313 Criminal Procedure Code . was 22 years in 1976 which is consistent with the age given in the said partnership deed. The further observations of the learned Magistrate, however, would indicate even more clearly his thinking : 'The consequence of any unlawful activity done by this firm (sic) and he was conscious of this fact that he executed this partnership deed. He thereforee, cannot escape from the liability for the activities done at the shop by his son as well as his partner Mukat Raj Jain' . Despite the manner in which the learned Magistrate has expressed himself it seems fair to state that he held both the father and son to be partners of the firm and on account of their being such partners and the kind of association that the father had with the partnership, as it was possible to spell out from the terms of the partnership (in the aforesaid manner) both of them were guilty under Section 7 read with Section 16 of the said Act.
(4) It is necessary to state in this context that the said finding, namely, of both of them being partners given by the learned Magistrate had become final so far as Mukat Raj Jam is concerned, who had not even filed any appeal. It was, it is worth-recalling the father alone who filed an appeal which was disposed of by the learned Additional Sessions Judge (Shri P. K. Bahri). On this point the learned Judge has observed as follows :
'NEW this partnership deed would not go to show that in fact the business being transacted in the shop in question was turned into a partnership business. It is significant to note that the attesting witness who has been produced does no tell us on what date he had signed this document. Significantly no date appears under the signatures of the attesting witness on this partnership deed. The stamp vendor who sold the stamp paper on which this partnership deed has been executed has been examined. The other attesting witness appears to be an Advocate still for the reasons best known to the appellant the said Advocate has not been produced The possibility that this document has been brought into existence at a much later stage for the purposes of this case cannot be overlooked. There is not an iota of evidence led by the appellant to prove that as a matter of fact the partnership business had come into existence. If is possible that the document executed might not have been put into action. No record of the partnership has been produced to show that in fact the partnership came into existence. In view of the above discussion I conclude that it is not established that the business being carried on the shop in question was of a partnership firm. The evidence led by the prosecution unmistakably shows that it was a sole proprietorship business of the appellant' .
(5) It would thus appear that the learned Judge entertained some doubts about the genuineness of the partnership; he could not, however, bring himself to find in positive terms that the alleged partnership was a sham, the evidence being probably not sufficient to enable him to do so and having regard to the way in which the learned Magistrate had himself approached the case. His observations may seem apparently' ambivalent, but he has stated firmly that the partnership document was not a sham; he did say that it was 'not established and that the business was the sole proprietary concern of the father-clearly contrary to what the trial Magistrate had found. The criticism, however, concerning Rameshwar Das, D.W. 1, who had also attested the partnership deed, that he had not put the date underneath his signature does not, however, appear to be valid since the date on which the partnership was executed has been mentioned at the commencement of the deed.
(6) Even beyond what the learned Additional Sessions Judge has stated Shri B. T. Singh, learned counsel for the M.C.D., drew my attention to the fact that apart from the non-examination of the lawyer who is said to have attested the said partnership deed his signature itself is not legible and it is not possible to identify the gentleman though it was mentioned that he was an Advocate of Delhi without even giving the details pertaining to where he lived etc.
(7) But the above suppositions concerning the partnership deed may not be available to the prosecution in the view that the conviction of both the accused in the case including the father being on the ground that they were partners, a ground which has become final so far as the son (Mukat Raj Jain) is concerned, it was not permissible for the learned Additional Sessions Judge to hold that the father (Padam Chand Jain) was not a partner. This aspect of the matter seems to have escaped the notice of the learned Judge, an aspect which bears on what might be broadly termed issue-estoppel. I have discussed the question of issue-estoppel, speaking on behalf of a Division Bench of this Court in Chandrika Prashad v. State (Murder Reference 4 of 1975 and Cr. App. 85 of 1975 decided on 8-9-1975) (3) at considerable length, referring to a number of decisions both English and Indian on the subject. It is needless to repeat here what I have stated therein. It may be sufficient for the purpose of this case to merely indicate that the question of the existence of a partnership having been raised and decided by the learned Magistrate in the manner aforesaid and the same having become final it was not possible for the appellate court to reach a conclusion which would be inconsistent with the existence of the said partnership. It is not disputed before me that in order to be able to invoke the aid of Section 17 of the said Act it is not sufficient that a person is a partner but that he should have participated in the said business in such manner as would entail the invocation of the said provision, namely, Section 17 of the said Act. The learned Magistrate thought that despite the father being described as a sleeping partner his being enabled to inspect the books of accounts would make it possible to invoke Section 17 of the said Act. I am afraid merely on the basis of a Partner being enable to look into the accounts of the partnership, if he wanted, a conclusion cannot be necessarily drawn that he was participating himself in the said partnership business in order to enable Section 17 of the said Act being invoked against him. The learned Magistrate having thus not borne the correct legal principle in mind the learned Additional Sessions Judge, in appeal, sought to get over this difficulty, faced by the prosecution, by seeking to throw doubts on the partnership deed and the likelihood of the same having been brought into existence, even subsequent to the sample having been taken in this case in order to enable the father to escape punishment. I am not now on the possibility of such a theory; I am merely pointing out that the conviction by the trial court itself having been on the ground, as I understand it, that both the father and son were Partners and that finding so far as his son was concerned having become also final it was not permissible for the appellate court to come to a conclusion contrary to the one reached by the trial court, namely, that they were partners.