Rajinder Singh and another vs State of Punjab and another

K.S. Garewal, J. (Oral)

Rajinder Singh and his brother Mohinder Singh were partners of M/s Arjan Singh Gurbachan Singh, a partnership firm dealing in fertilisers. The petitioners were sought to be prosecuted on the basis of complaint dated November 28, 1994 under the Fertiliser Control JUDGMENT 1985 read with Section 7 of the Essential Commodities Act, 1955. Petitioners have filed the instant petition to seek quashing of the complaint.

Petitioners have pleaded that on June 9, 1993 a sample of single super phosphate 16% manufactured by M/s Shivalik Fertilisers Ltd. was taken by the Fertiliser Inspector from stitched bags which had been received by the above firm i.e. M/s Arjun Singh Gurbachan Singh. Sample was analysed and found to be nonstandard and not according to the specification in respect of the percentage which was 15.21% instead of 16%, the variation being 0.79%. Show cause notice was issued to the firm on July 7, 1993 which was served on the firm and reply thereto was sent on July 16, 1993 wherein it was pleaded that fertiliser was in factory stitched bags and had been lying in the same shape as it had been when it was supplied by the manufacturers. (Show cause notice has been annexed as Annexure P2 and reply thereto as Annexure P3). However, the complaint was filed only against Rajinder Singh, Mohinder Singh, Manju Arora and Rajinder Singh (Production Manager of Shivalik Fertiliser) but not the firm.

Learned counsel has referred to the order of this Court dated July 20, 1998 passed in Criminal Miscellaneous No. 13096M of 1998 entitled Rajinder Singh v. State of Punjab and Chief Agricultural Officer, Ludhiana, 1998(3) RCR(Criminal) 601 (P&H). Similar order was passed in 17 petitions by Rajinder Singh. Contention of Rajinder Singh was that in none of the 17 cases, the company that had manufactured the fertiliser had been made an accused, therefore, the company''s production manager could not be prosecuted in the absence of the company as an accused. The court accepted the plea and returned the finding the Rajinder Singh could not be prosecuted.

Criminal Miscellaneous No. 13094M of 1998 was actually the petition filed by Rajinder Singh, coaccused of the petitioners, in this very case which was also one of the petitions decided on July 20, 1998.

It is obvious that the offence was committed by the firm, therefore, every person who was incharge of the firm or was responsible to if for the conduct of business could be deemed to be guilty. In section 10 of the Essential Commodities Act, the terms `Firm'' and `Company'' have been used synonymously. Since the offence was committed by the firm, unless the firm was impleaded as an accused, its partners could not be prosecuted. This was also so held by this Court in Sham Sunder Bassi v. The State of Punjab, 1991(3) RCR(Criminal) 199.

In view of the above, failure to implead the firm was a fatal flaw and in the absence of the firm, partners could not be prosecuted. Consequently, this petition is accepted and the complaint dated November 28, 1994 and all further proceedings arising therefrom are hereby quashed.