Kanta Bhatnagar, J.
1. This revision petition is directed against the judgment passed by the learned Additional Sessions Judge, Sri Ganganagar dated 11-6-80.
2. Briefly stated, the facts of the case giving rise to this revision petition are that on 26-7-1975 Hetram, Enforcement Officer inspected the firm M/s Brijgapal Vedprakash Sri Karanpur and found the opening balance of the wheat as 172 quintals. On verification it was found that the stock of 172 quintals of wheat was not there in Godown No. 43 as declared in the licence. On physical verification the goods were found in block house No. 2 'A'. Another mistake found by the Enforcement Officer was that the firm had 517 quintals of wheat in stock on 30-5-1975, 31-5-75 and 2-6-1975 while the limit to keep the stock was 500 quintals only and therefore, the firm had kept the stock beyond the prescribed limit. Thus it was found that the condition No. 3 of the licence to keep the goods in the declared Godown was not complied with and therefore, the provisions in Rajasthan Wheat Regulation of Trade Order, 1973 was contravented. For the second mistake it was considered to be a violation of provisions of the Rajasthan Preventing of Hoarding Order, 1972 as amended on 26-8-74. On the complaint being filed against the petitioner Brij Gopal and the Munim of the firm Nand Kishore. Proceedings in the Court of the Chief Judicial Magistrate, Sri Ganganagar proceeded. The learned Magistrate held both of them quilty for the aforesaid contraventions and sentenced them each to a fine of Rs. 500/- in default to undergo ten days simple imprisonment on each count.
3. Being aggrieved by their conviction and sentences Brij gopal and Nand Kishore preferred an appeal and the learned Additional Sessions Judge, Sri Ganganagar by the impugned judgment acquitted Nand Kishore for both the offences. Brijgopal was acquitted for the offence relating to the violation of the provisions of Rajasthan Prevention of Hoarding Order, 1972 but his offence regarding the contravention No. 3 of the licence issued under the Rajasthan Wheat Regulation of Trade Order, 1975 was held to be duly established and therefore, conviction for the same and the sentence of Rs. 500/-, in default to undergo ten days imprisonment was maintained and it was further ordered that as the Chief Judicial Magistrate had not awarded substantive sentence to the petitioner Brijgopal, he would undergo the sentence till the rising of the Court.
4. Being dissatisfied with this, the petitioner has invoked the revisional jurisdiction of this court.
5. Learned counsel for the petitioner has assailed the conviction and sentence of the petitioner on the ground that without there being any material to show that the petitioner was the incharge of the firm and responsible for conducting its business, his conviction cannot be said to be justified in the absence of the prosecution of the firm itself.
6. It is well settled that when the licencee is a company, it must be prosecuted and the partners are vicariously liable for the contravention of the provisions of the licence order by the licencee. There may be cases where a particular partner is proved to be incharge of the business of the licencee firm and responsible for its conduct and in such a case, even without the firm or the company, as the case may be, being arrayed as an accused, that particular partner can be prosecuted and punished. But in the absence of a specific evidence to the effect that the partner against whom the prosecution is launched was not incharge of the firm and responsible for conducting its business, he cannot be prosecuted unless the licencee firm is also arrayed as an accused.
7. In order to see the applicability of this principle to the case on hand, I have carefully examined the contents of the complaint, the charge and the evidence on record and have found that the licencee is the firm Brijgopal Vedprakash' and it has no where been mentioned that Brijgopal was the partner, incharge of the business of that firm and responsible for its conduct.
8. The argument advanced by Dr. S.S. Bhandawat, learned Public Prosecutor is that it was in the presence of the Brijgopal, one of the partners, and Nandkishore, Munim that the inspection was made by the Enforcement Officer and therefore, it must be presumed Brijgopal must have been incharge of the business. This argument is of no help to the Public Prosecutor in view of the principle enunciated in the various authorities that I would just discuss.
9. In the case of Bansilal v. State of Bihar (1) 1977 Cr LJ (Notes) 50 the petitioner, a partner in the firm, was prosecuted for contravention of a licence issued to the firm but it was not alleged either in the report of the Magistrate or any where else that he was incharge of the firm and was responsible for conducting the business of the firm and therefore, it was held that he could not be prosecuted for the contravention of an order under the Bihar Foodgrains Dealers' Licensing Order, 1967.
10. This principle also finds place in the observations in the case of M/s Krishna Trading Co. and Ors. v. State of Bihar (2) 1979 Cr. LJ 760 and it was held that if the licencee is a company then the company must also be prosecuted and in the absence of such prosecution even those who come within the categories of persons described in Section 10 of the Essential Commodities Act cannot be prosecuted.
11. In the case of Shailendra Kumar Gupta and Ors. v. State of U.P. (3) 1980 Cr LJ NOC 97 (All) the proceedings against the partners of the firm contravening an order under Section 3 of the Essential Commodities Act, 1955 were held to be invalid in the absence of any allegations in respect of partners proceeded against that they were incharge and responsible to the company for the conduct of its business.
12. This question about the prosecution of a partner not proved to be incharge and responsible for the conduct of the business of the firm, in the absence of the firm being arrayed as an accused, emerged for consideration before this Court in the case of Avinashilal and Anr. v. State of Rajasthan (4) 1980 Cr L.R. (Raj) 515 and it was observed as under:
In case contravention of order made under Section 3 of the Act is alleged to be by the 'company', a term which includes the firm also as per explanation (a) to Section 10 of the Act, then it must be alleged in the complaint or the charge, as the case may be that the persons who have peen prosecuted for such contravention where incharge of and were responsible to the company in the conduct of the business. Unless the company is arrayed as an accused and prosecuted, persons alone cannot be prosecuted.
13. This being the position of law, and from the record it being clear as observed above that there is no specific allegation about the petitioner being incharge and responsible for the condnct of the business of the firm, there is no justification in his conviction in the absence of the firm bein arrayed as an accused.
14. Consequently, the revision petition is allowed and the judgment of the Additional sessions Judge Sri Ganganagar, is set aside The petitioner is acquitted of the charge levelled against him and the sentence awarded to him is set aside. The amount of fine, if deposited, shall be refunded,. In view of these findings, the order of the confiscation of the seized wheat is also set aside.