ORDER Palok Basu, J.
1. Meena Oil Products and its three partners have filed Criminal Revision No. 70/1982 against the order of the 7th Additional Sessions Judge, Lucknow dated 30-10-1981 in Criminal Revision No. 6/ 1981 which was filed in his court by the opposite party Ramesh Chandra Agarwal, who had thereby challenged the order of the Magistrate dated 29-3-1981 refusing to implead the producer firm.
2. Criminal Misc. Application No. 1712/1982 has been preferred by the same four applicants namely, M/s. Meena Oil Products, the alleged producer firm, and, Maqbool Alam, Hasan, and Mushir Alam the alleged partners of the said firm in which the prayer is similar to the one made in the revision.
3. Yet another application being Criminal Misc. Application No. 312/1989, has been filed in which the major prayers referred to above have been incorporated as averments in the application and a further prayer has been made praying amendment in Criminal Misc. Application No. 1712/1982 to the effect that the order of this Court dated 5-3-1982 dismissing Criminal Revision No. 70/1982 be recalled and the revision be restored to its original number for hearing along with the said petition under Section 482 Cr. P.C. This application was allowed by this Court. The revision was restored to its original number and both the matters i.e. Criminal Revision No. 70/1982 and Criminal Misc. Application No. 1712/1982 were heard together on merits and are being decided by this Judgment.
4. It appears that on 12-12-1978 the Food Inspector concerned took two samples -- first from a sealed tin bearing label of M / s. Meena Oil Products Newajkheda, Aishbagh, Lucknow, second from an open tin of mustard oil which too was allegedly bearing label of M/s. Meena Oil Products. Ramesh Chandra Agarwal was the retailer i.e. vendor and he produced a warranty indicating purchase of the oil tins from M/s. Meena Oil Products, Newajkheda, Aishbagh, Lucknow. The two samples were apparently found adulterated hence two prosecutions under Section 7/16 P. F. A. Act (For short the Act) by way of Criminal complaint ensued. Criminal Case No. 210/1981 relates to the sample from open tin while Criminal Case No. 1767/81 relates to the sample taken from sealed tin.
5. It appears that while M/s. Meena Oil Products was already made an accused in Case No. 1767/1981 the other Case No. 210/ 1981 was filed only against Ramesh Chandra Agarwal. However, during the trial the said Ramesh Chandra Agarwal had filed a photostat copy of the cash memo through which he had purchased the tins from the said manufacturer. Consequently an application was moved before the Magistrate for impleading the manufacturer M/s. Meena Oil Products, Newajkheda, Aishbagh Lucknow, as an accused. It was also prayed that the two cases i.e. Case No. 210/1981 and 1767/1981 may be amalgamated and tried together.
6. On the Magistrate's rejecting the said prayer as stated above, Ramesh Chandra Agarwal had filed the revision before the Sessions Judge. It appears that the said lower revisional Court directed notice to be issued to manufacturer M/s. Meena Oil Products, Lucknow, who duly put in appearance and was heard through its counsel by the said Court. The lower revisional Court was of the view that because the original accused Ramesh Chandra Agarwal supplied the warranty therefor, it was but necessary to implead the manufacturer firm as an accused in Case No. 210/1981. In its opinion since the sealed tin as well as the loose mustard oil were both manufactured by the said M/s. Meena Oil Products, Newajkheda, Aishbagh, Lucknow, interest of justice required that the said firm as also its partners should be impleaded as an accused. In support of this revision, Sri Mahesh Chandra Advocate for the applicants, Sri Shyam Manohar Lal Advocate for the complainant and the Additional Public Prosecutor have been heard and the lower court record has been examined.
7. It may be stated here that Ramesh Chandra Agarwal in his statement (given in writing) made before the Magistrate on 12-3-1981 clearly pleaded that both the tins i.e. the sealed one and the open one were purchased by him from M/s. Meena Oil Prooducts Lucknow. The statement of the Food Inspector T. N. Srivastava was recorded on 29-1-81. The statements of P.W. 2 Bhondu Prasad and P.W. 3 Rahmat Ullah were recorded on 25-2-1981 and one Suresh Chandra was examined as a defence witnss on 22-4-1981. The record further reveals that as early as on 30-4-1980 an application was moved whereby it was prayed that the manufacturer be impleaded in the case No. 210/1981 and both the cases be amulgamated. The Magistrate had directed by his order dated 16-10-1980 that the said application be put up for orders at the time of arguments. Yet another application was moved by Ramesh Chandra Agarwal on 16-3-1981 which too was directed by the Magistrate to be put on the date fixed that is 16-3-1981. It was averred in paragraph 6 of the said application that it was just and proper that the manufacturer, proprietor and partners of M/s. Meena Oil Products, Nawajkheda Aishbagh, Lucknow may be impleaded as accused in the case. Therefore, it was prayed in the said application that in the interest of justice and fair trial the manufacturer M/s. Meena Oil Products Newajkheda, Aishbagh, Station Road, Lucknow may also be impleaded as accused for arriving at a just decision of the case.
8. It was strenuously argued by Mr. Mahesh Chandra that at no point of time the prosecution alleged that all the partners namely Maqbool Alam, N. Hasan and Mushir Alam should be summoned. He insists that the application moved on behalf of the prosecution as well as on behalf of Ramesh Chandra Agarwal, the original accused, indicated that they desired the Magistrate only to implead the alleged producer firm. He further argued that partners can only be summoned if the evidence in the case indicated anyone or all of them as the person responsible to the firm for the conduct of the business of the firm or who has been nominated as the person in charge of and responsible to the firm for the conduct of his business.
9. A close examination of the provisions contained in Section 17 of the Act indicates that the legislature has made an intentional distinction between the company itself and the person who is nominated in Sub-section (2) thereof or who is in charge of and was responsible to the company in the conduct of the business of the company at the time of the offence. Moreover, the explanation added to Sub-section (4) has further made a distinction between a company, its director, and, its manager. It is true that the said explanation may be attracted in different cases of different industries and may not directly govern the case at hand. The reference to the said explanation is being made only to emphasize that impleadment of the Company may not necessarily mean the impleadment of the director and manager of the company. Similarly the impleadment of a firm would not necessarily mean the impleadment of the partners of the firm. It may be at once added that the definition of the company in the relevant section indicates that it means any body corporate and includes a firm or other association of individual.
10. Keeping the relevant provisions in Section 17 in mind it will have to be concluded that if the Court has evidence before it concerning the impleadment of the firm only it may not be proper to implead the partners of the firm unless there was evidence to that effect. Learned counsel for the applicants brought to the notice of this Court that the names of the three partners was furnished to the Sessions Court vide an application moved and marked in his court as B-3/5, through which it was prayed that bailable warrants be issued against the three partners.
11. On the strength of these materials the learned counsel for the applicants wanted to argue that there was no evidence in the case justifying at least the impleadment of the three partners if not the firm. After giving thoughtful consideration to the entire matter, the argument appears to be wholly misconceived. It may be remembered that since the trial is going on, too many observations on the merits of the case may affect one party or the other. Therefore, a detailed discussion about the evidence shall have to be omitted. Suffice it to say, that from the cash memo, warranty, receipt, the statement of P.W. 1, P.W. 2 and P.W. 3 as well as the statement of the accused Ramesh Chandra Agarwal enough evidence is provided to prima facie direct the impleadment of the firm and its partners.
12. 'An act of firm' has been defined in Section 2(a) of the Indian Partnership Act as under:--
"An act of firm means any act or omission by all the partners, or by any partner or agent of the firm which gives rise to a right enforceable by or against the firm."
13. In view of the aforesaid definition it may have been arguable if no application was moved for impleadment of the firm but only a partner was sought to be impleaded. Where the main sale transaction as per the warranty emanated from the firm and signatures of its partners are available on the documents produced in the case as well as some light is thrown on the conduct of the partners in the business, the law enjoins that such partners must also be impleaded along with the firm. It may be remembered that Section 16, of the Act provides both types of punishments, that is corporal as well as sentence of fine. If only corporal punishment was prescribed then firm may well have been excluded and similarly if fine alone was to be realisable from the firm partners may have been excluded. The law is not so.
14. In order to judge the aforesaid conclusion it may be useful to make a reference to the salient features of Sections 19 and 20A of the Act. By Sub-section (2) of Section 19 a vendor shall not be deemed to have committed an offence it he proves that he had purchased the adulterated article after purchasing it with a written warranty from the manufacturer. Sub-section (3) entitles any person by whom a warrantly is alleged to have been given to appear at the hearing and give the evidence. Section 20A empowers the trial Court to implead the manufacturer, distributor or dealer of the adulterated article to be impleaded as an accused and proceed against him as though a prosecution had been instituted against him. The scheme of the Act therefore is very clear that the real sharks who, on the one hand extend a warranty, and, make the vendor sell to the other such of their products which are found adulterated may not escape punishment, if the evidence so requires.
15. It is indeed not understandable as to why the Food Inspector had not prosecuted the firm and the partners in this case even though it has impleaded from them in the case relating to the sealed tin. It does indicate that the Food Inspector omitted the name of the firm and the partners for no ostensible reason. Thus there is nothing wrong in the Sessions Judge having issued notice to the firm and heard it through its partners in the revision because such a course facilitated the proceedings in the lower revisional Court and is also likely to be helpful in the trial. Consequently, the order of the Sessions Judge does not suffer from any illegality or impropriety and has to be upheld. The revision and the Misc. Application, therefore, fail and are dismissed. The interim order dated 12-11-82 is vacated.
16. The trial Court is directed to proceed with the amalgamated trial in accordance with the law as expeditiously as possible.