Full Judgment
R.N. Aggarwal, J.
(1) The Assistant Commissioner Food & Supplies, Delhi filed a complaint against Kamlesh Kumar Gupta, partner of M/s. G.N. Traders, village Jawalaheri, alleging that on 22nd January 1973 the business premises of M/s. G.N. Traders was inspected by the Inspector, Food and Supplies, Delhi and on checking it was found that M/s. G.N. Traders had established a rice mill at Jawalaheri without a permit and further were carrying on rice milling operation without a license. It was further stated in the complaint that at the time of checking the mill 6235 bags of paddy and 258.55 quintals of rice were found. The accused Kamlesh Kumar Gupta was said to have violated the provisions of Sub-sections (1) and (2) of Section 8 of the Rice-Milling Industry (Regulation) Act, 1958 (hereinafter for the sake of brevity called 'the Act'). The relevant part of Section 8 reads as under :
'8.(1) No persons or authority shall, after the commencement of this Act, establish any new rice mill except under and in accordance with a permit granted under Section 5. (2) No owner of a rice mill shall, after the commencement of this Act, carry on rice milling operation except under and in accordance with a license granted under Section 6: Provided that nothing in this Sub-section shall apply to an existing rice mill for such period as may be specified in this behalf by the Central Government by notified order.'
(2) We may also here notice the definition of the expression 'owner' contained in Section 3(g) and it reads as under : (g) 'owner', in relation to a rice mill means the person who, or the authority which, has the ultimate control over the affairs of the rice mill, and where the said affairs are entrusted to a manager, managing director or managing agent, such manager, managing director or managing agent shall be deemed to be the owner of the rice mill,'
(3) Shri Darshan Singh, Inspector, Food and Supplies, testified that when he visited the mill premises Kamlesh Kumar, partner of the firm G.N. Traders, was present. We find that there is no evidence that Kamlesh Kumar was in the ultimate control of the affairs of the rice mill. The only other provision on which the learned counsel for the appellant placed reliance is Section 14, the relevant portion of which reads as under:
'14.(1) If the person committing an offence under this Act is a company, every person who, at the time of offence 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 offence 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 provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.'
(4) We find that there is no allegation that the firm had committed the offence. Even if we were to assume that it was the firm which had committed the offence Kamlesh Kumar could only be mad.' responsible if there was an allegation and proof that he was in charge of and was responsible to the firm for the conduct of the business of the firm. We find there is neither any allegation nor proof that Kamlesh Kumar was in charge of and was responsible to the firm for the conduct of the business of the firm.
(5) Kamlesh Kumar in the statement under Section 342 of the Code of Criminal Procedure stated that he was a sleeping partner of M/s. G.N. Traders. He further stated that the mill belonged to one Balbir Singh and Balbir Singh had associated G.N. Traders as partners in the said concern and given the assurance that he had the necessary permit and the license and that after the mill was raised on 22nd January 1973 it was found that Balbir Singh did not possess the permit and the license for running the mill and thereafter they immediately stopped the business of milling.
(6) The accused in support of his defense examined D.W. 1 Shiv Taj Singh son of Balbir Singh. D.W. I gave evidence that his father Balbir Singh had established the mill and that his father had given the mill on contract to Kamlesh Kumar-accused for milling the rice and that he (Balbir Singh) used to take four annas per bag as commission, and that in 1973 the mill was raided by the Civil Supplies Department and that it was only then that they came to know that a license was required for running the mill and thereafter Kamlesh Kumar stopped the business.
(7) There is no doubt that the above evidence would show that it was Kamlesh Kumar who was in charge of the business of the mill but then his defense is that the mill belonged to Balbir Singh who had associated G.N. Traders for running the mill and given the assurance that he possessed the permit and the license but subsequently it was discovered that he had no permit and license and thereafter the business was stopped. If we believe the defense then the case of the respondent Kamlesh Kumar would come within the proviso to Section 14(1). The defense evidence would show that Balbir Singh had held out to Kamlesh Kumar that he possessed the permit and the license and it was on this assurance that Kamlesh Kumar had taken the work of milling. This would prove that Kamlesh Kumar had acted bonafide and with diligence.
(8) The learned trial Judge had found the accused guilty of the offence charged with and sentenced him to two month's simple imprisonment and a fine of Rs. 3000.00 . Kamlesh Kumar went in appeal and the learned Additional Sessions Judge accepted the appeal and quashed the conviction mainly on the ground that since the firm was not prosecuted the accused who was only a partner of the firm could also not be convicted of the offences charged with.
(9) For the reasons stated we do not find any sufficient ground to interfere with the order of acquittal. The appeal is dismissed.