D.L. Mehta, J.
1. Firm M/s Prakash Chandra Ajmera, was a licensee for sale of kerosene oil under the provisions of Rajasthan Kerosene Oil Dealers Licensing Order, 1971, Shri Dev Bux, PW 5 Pravartan Adhikari (Enforcement Officer), at Kishangarh received soma complaints and checked the stock of the kerosene oil, and found that the balance of the kerosene oil as per the stock register is only 5 litres. The stock register of the firm was seized. PW 5, found that the stock register has not been maintained properly and does (sic not) give correct picture of the stock. Sales Register Ex. P 17, was also checked, and it was found that on 19th March, 1974, only 283 litres kerosene has been sold but the total has been shown 346 litres, and thus there is a mistake in total. In Ex. P 12, 18, 20, 21, 22, 23 and 24 the mistakes were detected. Ordinarily the stock must be about 1450 litres of kerosene, but it is was not found so after the correction of totalling mistake.
2. Learned Counsel for the petitioner has argued the case vehimently and has submitted that no case is made out against the petitioner. At the outset he has raised some legal and technical objections. Learned Counsel for the petitioner further submitted that Under Section 10 of the Essential Commodities Act it is necessary for the prosecution to prove that the petitioner was responsible for the management of the affairs of the partnership firm and he was managing the affairs of the firm The second objection raised by the learned Counsel for the petitioner is that it is necessary that the partnership firm should be arrayed as one of the accused.
3. He has submitted that the courts below have committed errors in convicting the accused petitioner Under Section 7 and in the last learned Counsel for the petitioner has submitted that if the court comes to the conclusion that the petitioner is guilty then the benefit of Probation of the Offenders Act, read with Section 360 Cr. PC should be extended. During the course of arguments it was pointed out by the court that generally the court does not extend the benefit of the probation specially in the matter of economic offences.
4. The petitioner moved an application through his Counsel and prayed that the petitioner has remained behind the bars for l0 days and the matter is pending since 1974 he has prayed in alternative that in case the court comes to the conclusion that the petitioner is guilty then instead of sending the petitioner to the jail after a period of 10 years fine should be enhanced and the petitioner should not be sent to the jail.
5. We are here not to impart the blind justice, we will have to read the writing on the wall and we will have to take into consideration the social needs and the requirements of the society while interpreting law. As early as in the year 1957, Supreme Court was seized with a matter about the interpretations of the law and specially the penal law. In the case of Mobark Ali Ahmed v. The State of Bombay 0043/1957 : 1957CriLJ1346 . Their Lordships were interpretating the IPC which was exacted 100 yean back, in para 31 their Lordships held;
That construction must be based on the meaning of the words used, to be gathered according to the ordinary rules of interpretation and in consonance with generally accepted principles of exercise of criminal jurisdiction.
It is not necessary and indeed not permissible to construe the IPC at the present day in accordance with the notions of criminal jurisdiction prevailing at the time when the Code was enacted. The notion relating to this matter have very considerably changed between then and now during nearly a century that has elapsed. It is legitimate to construe the Code with reference to the modern needs whenever this is permissible, unless there is anything in the Code or in any particular Section to indicate the contrary.
6. The Judge cannot be committed to any political ideology and if he acts as a committed Judge to a particular idieology then he will fail to discharge his duties. Difference of thoughts is the foundation of the democratic set up. To preserve the democracy it is our obligatory duty to see that judicial officers are not committed to any political ideology.
7. At the same time, Judge should not be blind and he should be capable of reading the writings on the wall. He should understand the necessity of the time and should apply and interpret the law, in a way which may be beneficial to the society and to the nation. The factual meaning should not ordinarily be given if two views are possible in the matter of interpretation of law. The meaning which is more beneficial to the society should be given. Who have taken the oath and we are bound to see that we do not act in a way which will place impediment in the implementation of the preamble of the Constitution of India. The preamble of our Constitution requires social economic justice.
8. By interpretating the law in favour of the holders, black marketers, smugglers, we will not serve the cause of law but we will put the impediment on the supply system of the Country. There is hue and cry every where about the non-supply of the necessary consuming items. If we deal leniently with the dealers who often commit the economic offences then our conscious will pick and then we can think that we are not committing justice to the society. Now the courts are at trial and we have to face the trail before the society. The respect which we commanded in the society in the past is not available today and the time has come for self-introspection. The answer we get is the utility of the institution is always weighed by the service rendered by the institution to the society and if we render service which is beneficial to the society and we shut our eyes to the old traditions of protecting the haves at the cost of have nots then the day will not be far away when we will regain the same confidence of the society which we used to get.
9. We are the constitutional authorities and we will have to adopt the activist approach in our dealing with the cases. We are not status quo time bound beaurocrate judges of any royal Empire but we are constitutional functionaries committed to the Constitution and none else. The activist approach needs that the people should get the essential commodities without difficulty and dealers who deal with the essential commodities in a way which may adversely effect the needs of the society should be dealt with iron hand. We should be stiff and should not be of waivering mind while dealing with economic offences. With this background I will now like to interpret the provisions of Section 10 of the Essential Commodities Act.
10. Section 10 of the Essential Commodities Act, reads as under:
(1) If the person contravening an order made under Section 3 is a company, every person who, at the time of the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business 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 exercise all due diligence to prevent such contravention.(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 shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation:--For the purpose 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.
11. Learned Counsel for the petitioner has submitted that the provisions of Section 10 are similar to the provisions of Section 17 of the Food Adulteration Act. (sic) invited the attention of the learned Counsel for the petitioner to Clause (i) and (ii) of the Essential Commodities Act, and wanted to know what is a difference between Clause (i) and (ii) Section 10 provides that 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 attribuable 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. The word 'is attributable' to any neglect on the part should be interpretated in a way that if any officer or any partner of the firm neglect to look in to the affairs of the firm and thereby allows the commission of the offence then he should be deemed to have the knowledge of the commission of the offence and for this negligence he could be held guilty under the provision of the Section 7 of the Act.
12. Learned Counsel for the petitioner has invited my attention to the case of D.K. Jain v. The State AIR 1966 Allahabad 525 wherein a Division Bench of the Allahabad High Court while considering the Section 17 of the Prevention of the Food Adulteration Act, held that:
To make the applicant liable for the offence committed by the company and its salesman it was necessary for the prosecution, as has been indicated earlier, within the meaning of Section 17 of the Act, 'that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of 'applicant'.
13. However the attention of the learned Counsel for the petitioner was invited to the other part of this authority in which their Lordship has held that they had some nexus, with the crime either because of their connivance with it or due to their criminal negligence which had resulted in its commission. The proposition laid down in this case is not at alt in dispute. Any person can be held guilty vicariously if he commits criminal negligence in the discharge of his duty. In Section 10 the word 'attributable negligence' is wide in scope and it cannot be said that it is limited to criminal negligence.
14. In the instant case the petitioner was a partner and he has not come with a case that he was a sleeping partner or he was not participating in the business On the contrary he has taken the plea that other books of accounts were maintained and he has also produced the accounts book which was not relied by the court from the perusal of the statements of PW (sic), it can be inferred that the even petitioner was looking after the business and the accounts. The petitioner has moved the application for licence which is Ex. P 6 and he also obtained the licence Ex. P 7, and this shows that the petitioner was actively participating. In the application Ex. P 6 none has signed except the petitioner and the petitioner has mentioned that one Mahavir Prasad, is associated with the firm. Even Mahavir Prasad, has not signed the application this goes to show that the petitioner was actively participating in the business. Even otherwise every partner who is working partner is responsible for commission of the offence unless he has proved that he was a sleeping partner, one cannot close his eyes to the fact that the Partnership Act is self contained code which provides the rights and the liabilities of the partner and ordinarily every partner is responsible under the Partnership Act for the acts done by any of the partner in the miner of partnership business. Here we can take otherwise also that attributable negligence of any party who is a partner will make him guilty in Clause (ii) of Section 10. The positive act and negative omission resulting in criminal negligence has to be distinguished. Section 10 and specially Clause (ii) of Section 10 provides that if one is negligent in the discharge of his duties towards the business of the firm and if it results in the commission of the offence then the person who is negligent and whom the negligence is attributed is equally liable, this Section has been inserted to prefect the interest of the society. It is very difficult in partnership firm to prove the active commission of any offence by any partner and if the narrower interpretation is given to Section 10 then every partner will shift their burden on the other partner and thus will be very difficult to prove that who has committed the offence under the Act.
15- It should be proved that negligence is to be attributable. Thus the attributable negligence and negligence cannot be equated and we will have to give a wider meaning to the word attributable negligence. In the instant case there are number of entries showing the wrong totalling and there was a shortage of kerosene also and so it can be said beyond reasonable doubt that the person who was been charged and who was a partner can be convicted for attributed negligence, even if no active participation on proved in the matter. It does not mean that the connivance or participation cannot be inferred. However, if we come to the conclusion that the negligence is attributable then the Clause (ii) of Section 10 will come into operation and the person who is negligent or to whom negligence can be attributed shall be guilty under Section 7 of the Act.
16. The law provides that some persons can be chargesheeted and tried together and if one cannot be chargesheeted for one reason or the other the law does not provide that the person who is guilty should be acquitted and should be set at liberty to commit crime. Learned Counsel for the petitioner has submitted that the firm has not been arrayed as an accused and so the petitioner cannot be convicted but the investigating agency and the court has committed a mistake in not prosecuting the firm but it does not give a licence to the person who can be convicted under the law to be acquitted only on this ground. If this practice is allowed and this intrepretation can be accepted then the investigating agency will submit the challan against any one and will thus also give a licence to the party for acquittal. Ordinarily I would have directed even at this stage that the firm should be arrayed and a separate trial should be committed but more than 10 years have elapsed and I feel it will not serve the purpose at such a belated stage. I do not agree with the view taken earlier that if the firm has not been prosecuted the partner should be acquitted. The word 'person' used in Section 10 in wide enough and include the partner, secretary, officers of the firm. The necessary requirement is that the prosecution must prove that he was either the partner, manager, secretary of the firm and it is not in dispute that the petitioner was a partner.
17. I do not find any force in the submission made by the learned Counsel for the petitioner and I hold that even without arraying the firm as a co-accused any partner can be convicted and sentenced. However, I would like to mike it very clear that it is the duty of the court below to take cognizance and it should array the firm in the line of accused at the proper time.
18. I have gone through the record and I do not find any force in the submission nude by the learned Counsel for the petitioner as far as the question of sentence in concerned and both Courts have rightly held accused guilty. Learned Counsel for the petitioner has prayed that the benefit of Section 360 of the Cr. PC and Section 4 of the Probation of the Offenders Act, should be extended.
19. I would not like to extend the benefit of the Probation of the Offenders Act, in economic offences which will ordinarily result in its disser vice to the society and it should not be extended generally. Learned Counsel for the petitioner has also moved an application and has prayed that the petitioner his undergone the sentence of 10 days and he has prayed that the fine of Rs. 1,000/- which has been imposed on him may be enhanced to Rs. 5,000/-.
20. The prayer has been made by the party and so the notice of enhancement is not necessary. The matter relates to the year 1974. The petitioner had already undergone sentence of 10 days. I maintain the conviction and reduce the sentence of 6 months awarded by the two courts below to the sentence already undergone and in lieu thereof direct that the petitioner shall pay Rs. 5,000/- as fine instead of Rs. 1,000/- awarded by the court. In case the petitioner fails to deposit the fine within a period of three weeks he will have to undergo sentence of 7 months.
21. With this modification the revision petition is partly allowed. Thus the conviction is maintained and the sentence is modified accordingly.