{"id":176538,"date":"1988-12-12T00:00:00","date_gmt":"1988-12-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-rajasthan-vs-narain-das-and-ors-on-12-december-1988"},"modified":"2015-06-24T07:42:35","modified_gmt":"2015-06-24T02:12:35","slug":"state-of-rajasthan-vs-narain-das-and-ors-on-12-december-1988","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-rajasthan-vs-narain-das-and-ors-on-12-december-1988","title":{"rendered":"State Of Rajasthan vs Narain Das And Ors. on 12 December, 1988"},"content":{"rendered":"
Rajasthan High Court<\/div>\n
State Of Rajasthan vs Narain Das And Ors. on 12 December, 1988<\/div>\n
Equivalent citations: 1989 WLN UC 299<\/div>\n
Author: G Sharma<\/div>\n
Bench: G Sharma<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
G.K. Sharma, J.<\/p>\n
1. This appeal is directed against the judgment dated 7-11-1979, by the which, the Chief Judicial Magistrate acquitted Narain Das from the offence under Section 3\/7 of the Essential Commodities Act (E.C. Act) and convicted the respondents Ashok Kumar and Omprakash under this offence. Ashok Kumar and Omprakash have been fined Rs. 500\/ each. The State has preferred this appeal against the acquittal of Narain Das, respondent and also prayed for the enhancement awarded to Ashok Kumar of the punishment and Omprakash.\n<\/p>\n
2. The Enforcement Officer inspected the Firm of M\/s. Narain Das Shyam Sunder, 22 godown, Jaipur and found that the Firm sold kerosene oil without obtaining valid licence for its sale. The licence was with the Firm which was valid upto 31-12-72 and after that date the licence was not renewed. The Enforcement Officer was told that they had deposited the fee for the renewal of the licence. The Enforcement Officer was not satisfied about the fact of renewal of the licence and he submitted a complaint in this respect also. In this complaint was also mentioned that they had contravened the order issued by the District Magistrate in which it was necessary that while selling kerosene oil to the consumers the addresses of the purchasers on the bills must be written.\n<\/p>\n
3. The learned CJM after concluding the trial found that no case is made out against Shyam Sunder and Jaswant Rai and they were discharged on 2-3-1977. He, how ever, proceeded against Narain Das alleging to be the partner of the Firm, but be acquitted him also. The State has preferred leave to appeal against Narain Das, Shyam Sunder, Jaswant Rai, Ashok Kumar and Omprakash. Leave to appeal was granted against Narain Das Ashok Kumar and Omprakash only. No leave to appeal wag granted against the discharge order of Shyam Sunder and Jaswant Rai. Therefore, the present appeal is only against narain Das against his acquittal order and against Ashok Kumar and Omprakash for the enhancement of their punishment.\n<\/p>\n
4. The learned Counsel for the respondents argued that Enforcement Officer erred in filing the complaint against the partners of the Firm only. It was for the Enforcement Officer to make the Firm one of the accused and then also should have made the partners as the accused. This principle is also laid down in Section 10 of the E.C. Act. As the provisions of this section have not been complied with, when the Firm has not been made accused in the case, the partners alone cannot be prosecuted, or convicted for the offence-Actually, the Firm contravened the provisions of the the Act and the Order. The Firm is responsible and guilty for this offence so the Firm should have been made an accused in the complaint along with the partners, Only those partners who are responsible for the conduct of the business of the Firm can be held liable and responsible. A partner who is not at all responsible for carrying the business of the Firm and who is not taking acting part in the business of the Firm, cannot be held liable in view of Section 10 of the E.C. Act.\n<\/p>\n
5. In this light 10 of this Act is perused. This section says that “If the person contravening an order made under Section 3 is a company, every person who, at the time the contravention was committed was in charge of, and was responsible to, the company for the conduct of 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. So the bare reading of this section says that the company or the person responsible for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention of the provisions of this Act. Company includes a Firm also. So in view of Section 10, apart from the partners only who are responsible for the business of the Firm, the Firm itself is guilty for the contravention. According to the Enforcement Officer he checked the Firm M\/s. Narain Das Shyam Sunder and found the contraventions of the Act and the order of the District Magistrate. So the Firm Narain Das Shyam Sunder is guilty. The Enforcement Officer should have made the Firm as one of the accused and then the partners who are responsible for carrying the business of the Firm are also responsible for the contravention and for that such partners can be made accused. In the present case the Enforcement Officer submitted the complaint against 5 persons i.e. Narain Das, Shyam Sunder, Jaswant Rai being partners of the Firm and Ashok Kumar and Omprakash being employees of the Firm. M\/s. Narain Das Shyam Sunder Firm has not been made as accused.\n<\/p>\n
6. The learned Public Prosecutor argued that the name of the Firm is mentioned in the title of the complaint so the Firm has also been made the accused. 1 do not agree with this argument. The title indicates that only 5 persons have been made accused and their addresses have been shown through the Firm M\/s, Narain Das Shyam Sunder. Had the Enforcement Officer included M\/s. Narain Das Shyam Sunder as accused then this Firm, should have been mentioned as accused No. 1 or No. 6 Really this is very unfortunate that the Enforcement Officer has not read even Section 10 of the E.C. Act. Had he cared to go through this Section, he would not have committed this mistake. It was incumbent on the Enforcement Officer to implead the Firm Narain Das Shyam Sunder as an accused.\n<\/p>\n
7. In the case of State of Madras v. C.V. Parekh and Another,<\/a> 1971 Supreme Court 447, their Lordships while observing about Section 10, EC. Act and reproducing the main gradients of that Section opined as under:\n<\/p>\n
 In the present case, there is no finding either by the Magistrate or by the High Court that the sale in contravention of Clause 5 of the Iron and Steel (Control) Order was made by the Company. In fact, the Company was not charged with the offence at all. The liability of the persons in charge of the Company only arises when the contravention is by the Company itself. Since, in this case, there is no evidence and no finding that the Company contravened Clause 5 of the Iron & Steel (Control) Order, the two respondents could not be held responsible.\n<\/p>\n
8. In the present case there is no evidence that the Firm M\/s. Narain Das Shyam Sunder has contravened the order. This is no finding of the learned CJM that the Firm has contravened the Order. The allegation is that Narain Das being partner of the Firm had contravened the Order. If we look the judgment, we see that the finding of the learned CJM is that prosecution has failed to establish that Narain Das was partner of this Firm and was responsible for carrying the business of the Firm The prosecution has failed to prove even this fact that respondent Narain Das was responsible for carrying the business of the Firm M\/s. Narain Das Shyam Sunder.\n<\/p>\n
9. Similarly, in the case of State of Kerala v. Naveen Chandra M. Soni. partner M\/s. Soni Harilal & Co, Ernakulam 1978 Cr. Law Journal 105, it has been observed as under:\n<\/p>\n
 The duty or obligation to establish that the accused has exercised all due diligence to prevent the contravention of the provisions referred to in Section 10(1) would arise only after the prosecution establishes that the conditions mentioned in Section 10(1) are present in the case. Where, therefore, the charge for offences under Sections 3 & 7 did not mention that the accused was incharge 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 did not mean that he was in charge of the business of the firm Therefore, he was not liable to be convicted even though offence punishable under Sections 3 & 7 had been made out.\n<\/p>\n
10. In the present case for the moment I believe that Narain Das was the partner of the Firm M\/s. Narain Das Shyam Sunder but it has no where been established by the prosecution that Narain Das responsible for carrying or for the conduct of the business of the Firm. There is no evidence that be was in charge of the Firm when this firm was inspected by the Enforcement Officer. Therefore, in all circumstances the acquittal of respondent Narain Das is correct and it needs no interference in the order of acquittal.\n<\/p>\n
11. Ashok Kumar and Omprakash have been found guilty and have been punished with fine. The State has preferred this appeal for enhancement of the punishment. In this respect I have heard the learned Public Prosecutor and I do not find any substance in this appeal for enhancement of the punishment, The incident bad taken place in the year 1974 and after the lapse of 14 years I do not think proper to reconsider the matter of enhancement of punishment of these two respondents who were mere employees of the Firm. Therefore, whatever punishment awarded to them is maintained and the State appeal in this respect is also not allowed.\n<\/p>\n
Consequently, the State appeal having no substance is dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Rajasthan High Court State Of Rajasthan vs Narain Das And Ors. on 12 December, 1988 Equivalent citations: 1989 WLN UC 299 Author: G Sharma Bench: G Sharma JUDGMENT G.K. Sharma, J. 1. This appeal is directed against the judgment dated 7-11-1979, by the which, the Chief Judicial Magistrate acquitted Narain Das from the offence under […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,29],"tags":[],"class_list":["post-176538","post","type-post","status-publish","format-standard","hentry","category-high-court","category-rajasthan-high-court"],"yoast_head":"\nState Of Rajasthan vs Narain Das And Ors. on 12 December, 1988 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-rajasthan-vs-narain-das-and-ors-on-12-december-1988\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Rajasthan vs Narain Das And Ors. on 12 December, 1988 - 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