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TMI Blog1981 (11) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... rate on the allegation that the petitioner had committed offences under Section 135 of the Customs Act and under Section 85 of the Gold Control Act read with Sections 31 and 55 of the said Act. The Prosecution case is that on 27-9-1970 some Custom Officers searched the jewellery shop under the name and style of "S.B. Pyne" and Co. of the petitioner and his partner at 342, Netaji Subhas Road, Howrah and recovered four cut pieces of gold weighing 17 tollas and 8.5 annas one of which bore foreign markings indicating that it was smuggled and thereby the petitioner has committed an offence punishable under Section 135 of the Customs Act and that on the said date the petitioner was in possession, custody and control of primary gold in contraventi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner and his brother are partners, the proceeding should be quashed because the partnership firm has not been impleaded in the case and there cannot be any prosecution of a partner who is vicariously liable for the alleged offence without the firm which is primarily liable being impleaded in the case. In this connection, reference has been made to the averments in paragraphs 4 and 5 of the petition of complaint wherein it has been alleged that on search of the jewellery shop of the accused under the name and style of Messrs. S.B. Pyne : Co. situated at 342, Netaji Subhash Road, Howrah and from inside the Safe in the shop the key of which was produced by the accused, four cut pieces of gold weighing 17 tollas and 8.5 annas (204.70 gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .) Ltd. and others v. Corporation of Calcutta (1979 Cri. L. Journal p. 86) and another decision of this Court in the case of Maya Chandra and others v. The Inspector, Minimum Wages Office and others (1979 Cri. L. Journal p. 534) as well as the decision of the Delhi High court in the case of Chander Bhan v. The State, reported in "All India Prevention of Food Adulteration Journal" 1978 at p. 141. The aforesaid decisions support the view that where an offence is shown to have been committed by a partnership firm, one of the partners of the firm cannot be prosecuted for the alleged offence without prosecuting the firm itself which is primarily liable. In my view, this contention raised on behalf of the petitioner is well founded and should pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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