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TMI Blog1990 (11) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... tins containing 500 grams and I kilogram each with same loose packed tins. They verified the stock register of baby foods where there was no entry in respect of these stocks. They also found that in the cash memo book licence number has not been mentioned in respect of lactogen (infant formula) sold. Being of opinion that term Nos. 4, 6 and 9 of the licence granted to the firm, P. W. 1 submitted prosecution report in the Court of Special Judge against the three partners of the Firm alleging commission of offence Under Section 7 of the Act. 4. After cognizance being summoned accused persons were explained substance of accusation since trial was to be made adopting summary procedure. Pleading not to be guilty, they claimed to be tried. 5. Prosecution examined two witnesses and proved the seizure list (Ext. 1), zimanama (Ext. 4), cash memo book (Ext. 2) containing counter-foils of three receipts (Ext. 2/a to 2/c) along with others and stock register (Ext. 3). Accused No. 1 Dindayal Agarwala was present in the business at the time of inspection and seizure, examined himself as D.W.1 and proved the stock register of Lactogen (infant formula) between 1-1-1983 to 31-12-1983 (Ext. A) wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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; 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 exercised 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 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. Explanation -- For the purposes of this section -- (a) "Company" means any body corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the company, and (3) any, director, manager, secretary or other officer of the company with whose consent or connivance or because of neglect attributable to whom the offence has been committed, whom for short we shall describe as an officer of the company. Any one or more or all of them may be prosecuted and punished. The company alone may be prosecuted. The person in-charge only may be prosecuted. The conniving officer may individually be prosecuted. One, some or all may be prosecuted. There is no statutory compulsion that the person incharge or an officer of the Company may not be prosecuted unless he be ranged along side the company itself. Section 10 indicates the persons who may be prosecuted where the contravention is made by the company. It does not lay down any condition that the person-in-charge or an officer of the company may not be separately prosecuted if the company itself is not prosecuted. Each or any of them may be separately prosecuted or along with the Company. Section 10 lists the person who may be held guilty and punished when it is a company that contravenes an order made Under Section 3 of the Essential Commodities Act. Naturally, before the person-in-ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion fails since prosecution has not taken any steps to prove how other accused persons are responsible for contravention of terms of the licence. 14. As regards first submission of Mr. Naidu, it is to be remembered that baby food has been defined in clause 2 (i) of the Orissa Order to be a food as specified in Schedule-I. When the State order came into force on 2-9-1966 being published in official gazette Schedule-I originally contained seven items being (1) Amul Milk food for babies (2) Canac baby food (3) Glaxo (4) Horlics (5) Lactogen (6) Lactodex, and (7) Oster Milk. This schedule has been amended or substituted from time to time. However, Lactogen has continued to remain in the schedule as such even now. Mr. Naidu submitted that Lactogen (infant formula) is not 'Lactogen' as mentioned in the Schedule. According to him there are many types of baby foods available in the market and all are not included in the schedule. In the schedule as it exists now, he brought to my notice 'Amul' and 'Amul Spray' to develop his submission that State Government does not intend to include all milk foods in category of baby foods and where it includes two brands of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a Partner, he would be liable. It is true that all the three accused persons are partners. Accused Dindayal was present in the business premises and it can safely be inferred that he is responsible for business of the firm. Accused Khusiram has answered to a question in this Section 313 statement "We sold Lactogen infant formula'. From this, it can be inferred that he is also responsible for the business and is guilty. Accused Asharam stands in different footing. He is aged 62 years. In his statement Under Section 313, Cr. P.C., while admitting that he is a partner, he stated that he has no knowledge of Partnership business. This statement makes it clear that he was not responsible for the business at the time of contravention of the State order by the Firm. Accordingly, he not being responsible for the contravention by the firm of which he is Partner cannot be held guilty. 18. Mr. Naidu submitted that under a misconception without having any ill-motive the State order has been violated. It may be so. However, mens rea is not an ingredient to constitute an offence Under Section 7 of the Act. But the same may be a circumstance to consider the question of sentence. 19. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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