Kumari P. Janaki Amma, J.
1. It is the primary duty of the charging officers and those who are to prosecute offenders to be conversant with the statutes and the ingredients of the offences for the contravention of which they are to take action. The present case is an instance of the consequences of the omission.
2. The respondent is a partner of M/s. Soni Harilal and Company, a firm dealing in automooile tyres and tubes, On 17-4-1&74, a surprise inspection was made of the above concern by P. W. 4, the Central Zone Surprise Squad Supply Officer along with P. W. 1 and others. The inspection revealed that the firm was not issuing proper bills and vouchers to customers and that accounts were not properly maintained. Verification of stock revealed shortage in the case of some of the items and excess stock in the case of others than the number shown in the stock register. The respondent was prosecuted for offences punishable under Clauses 5 and 6 of the Kerala Automobile Tyres and Tubes (Declaration of Stocks and Maintenance of Accounts) Order, 1973 read with Sections 3 and 7 of the Essential Commodities Act, 1955. The respondent pleaded not guilty. The Chief Judicial Magistrate, Ernakulam who tried the case found that there was contravention of the clauses referred to above and that offences punishable Under Sections 3 and 7 of the Essential Commodities Act had been made out. The court, however, held that there was no averment either in the charge sheet or in the course of evidence to the effect that the nespondent was in-charge of the .concern at the relevant time or that he had anything to do with the maintenance of stocks and accounts. The Court, therefore, acquitted the respondent. The appeal is preferred challenging the above order of acquittal.
3. It is common case that the respondent is a partner of the concern M/s. Soni Harilal and Company. There is however, no case for the prosecution that he was present at the time when the search was made. According to the respondent, he was away in Bombay in connection with a marriage and was not in charge of the concern during the relevant period.
4. Section 10 of the Essential Commodities Act reads:
(1) 'If the person contravening an order made Under Section 3 is a company, every person who, at the time the contravention was committed, was im-charge of, and was responsible to the company for the conduct at 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 punished accordingly:
Provided that nothing contained in this Sub-section shall render any such person liable to any punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention.(2) Notwithstanding anything contained in Sub-section (i), 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.
Explanation: 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.
Admittedly, the respondent is only one of the partners of the firm. There is no averment in the complaint or in the course of evidence to the effect that he was during the relevant period in-charge of or was responsible to the firm for the conduct of the business of the firm. The firm as such has not been proceeded against. It is no doubt true that if the offence has been committed with the consent or connivance of the respondent, he would be held guilty of the offence and is liable to be proceeded against as if he himself did the act. But no such evidence has been adduced in the case. It is argued on behalf of the appellant that the burden of proving that the contravention of the provisions took place without his knowledge and that he exercised due diligence to prevent such contravention is on the respondent. 'The contention is that in the absence of 'cvi-' celled to the effect that the respondent took saps to prevent contravention of the provisions he should be held responsible. The argument is untenable. The responsibility to prove that the respondent had taken steps to prevent the contravention would arise only if the prosecution first establishes that the conditions mentioned in Sub-section (1) exist in the case. In the instant case, the charge does not mention that the respondent was in-charge of or responsible for the conduct of business of the firm at the relevant time. .The mere fact that he was one of the partners of the firm does not mean that he -vas in charge of the business of the firm, Neither has the prosecution adduced evidence to that effect. The duty or obligation to establish that the respondent has exercised all due diligence to prevent the contravention of the provisions referred to in Sub-section (1) would arise only after the prosecution establishes that the conditions mentioned in Sub-section (1) are present in the case. There is signal failure on the part of the prosecution to establish that the ingredients of the offence so far as it relates to a partner of the firm are present in the instant case. The order of acquittal does not, therefore, deserve interference. The appeal is accordingly dismissed.