IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1374 of 2007 Gopi Chand Bothra, son of Dharma Chandra Bothra, resident of village-Chapatti Farbisganj, District-Araria, at present residing at Dahipati Road, P.S. and District- Kishanganj. ……..Petitioner Versus State Of Bihar . ……Opp.Party 9. 3.08.2011 The accused petitioner has preferred this revision application against the order dated 16.08.2007 passed by the learned Chief Judicial Magistrate, Kishanganj in G.R.No.1079/2006 arising out of Kishanganj P.S. Case No.275/2006 by which cognizance has been taken against the petitioner for the offence punishable under Section 7 of the Essential Commodities Act, 1955 and the case has been transferred to the court of Sub-Divisional Judicial Magistrate, Kishanganj for trial. The prosecution case, in brief, is that in pursuance to the order of Collector, Kishanganj vide memo no.630 dated 21.12.2006, the Supply Inspectors of Kishanganj Town and Kishanganj Dehat made raid in the factory/firm namely M/s Arihant Polytek Plastic Factory, which manufactures plastic water tank and found that the domestic gas cylinders (14.02 KG) were used for the manufacturing of the plastic tank, which was the violation 2 of Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 1993 and 2000 and also in violation of the Essential Commodities Act. Five L.P.G. Cylinders were seized in presence of the witnesses and it was mentioned that the petitioner, the owner/manager of the factory has misused the L.P.G. cylinders by using the L.P.G. domestic cylinders in the commercial use. On the basis of written information of the supply inspector, Kishanganj P.S. Case No.275/06 was instituted under Section 7 of the Essential Committees Act. After investigation, the case was found true and the charge-sheet was submitted against him before the learned Chief Judicial Magistrate. The learned Chief Judicial Magistrate has taken cognizance of the offence against the petitioner vide the impugned order dated 16.08.2007. Heard Mr. N.K. Agarwal, learned Senior Counsel for the petitioner and Md. M. Alam, learned A.P.P. for the State. The learned counsel for the petitioner submits that the case has been lodged against the firm, but name of all the partners/Directors have not been mentioned showing who was responsible and in-charge of the factory/firm. As 3 such, the cognizance is bad, secondly he has submitted that the petitioner was not aware of the fact that there is a law, which prohibits the use of domestic L.P.G. cylinder for commercial purpose, therefore, no mensrea can be attributed against the petitioner for his prosecution under Section 7 of the Essential Commodities Act. In support of his contention, he has referred to a decision in the case of Ram Nath Prasad Vs. The State of Bihar reported in 1983 BLJ 25. It appears from the decision referred to above that the case was lodged against the firm and the question was whether the petitioner can be said to be liable being a Proprietor of the firm. It is well known that a firm is the collective name of the partners and partnership is the relationship between the persons who have agreed to share the profits of a business carried on by all or any of them action for all, the case was instituted against the firm. It was not disclosed as to which of the partners of the firm was liable for prosecution. It was also not disclosed as to who was in-charge of the business of the firm or was responsible to the firm for the conduct of its business. But in the present case, the offence is alleged to 4 have been committed by the petitioner who is the owner/ the manager of the firm. There is specific allegation of overt act against him. Therefore, in my humble view, this decision is not helpful to the petitioner. So far as the second contention of the petitioner is that he was not knowing the provisions as to whether the use of domestic L.P.G. cylinder in commercial use is an offence. This contention only can be decided after the trial as to whether the petitioner had used for the first time or he was in habit of using the domestic gas in commercial purpose for wrongful gain. The learned counsel for the State has submitted that this is the initial stage of the proceeding and at this stage only a prima facie case has to be looked into. After hearing the learned counsel for both the parties and on perusal of the impugned order as well as the carbon copy of the case diary, it appears that the case has been lodged against the petitioner, who is the owner and manager of the firm. It further appears from the provision of L.P.G. Order 2000 that the L.P.G. Cylinder for domestic use is made in 14.02. K.G. capacity, whereas, a category for non-domestic cylinder is made in the capacity of 19 5 K.G./47.5 KG. As such, it cannot be said that the petitioner was not knowing the difference between the L.P.G. Cylinder which is used for domestic purpose and the cylinder used for commercial purpose. Moreover, it cannot be decided at this stage. Considering the facts and circumstances stated above, I do not find any ground to interfere with the impugned order. In the result, this application is dismissed. V.K. Pandey ( Amaresh Kumar Lal, J.)