Abdul Gafur vs Emperor

Luby, J.—This is an application for revision by Abdul Gafur who has been convicted under S. 59 read with S. 47, Bihar and Orissa Excise Act, and sentenced to pay a fine of Rs. 200, or in default to undergo rigorous imprisonment for two months. This order was passed by Mohammad Ataur Rahman, Magistrate, with Second Class powers at Giridih, on 8th May 1934. Abdul Gafur appealed to the Deputy Commissioner of Hazaribagh, but his appeal was dismissed.

Abdul Gafur was tried along with. Nadir Mian, Maula Bux and five others, who were accused of having tried to smuggle six canisters containing 24 gallons of country liquor from the Benga bad outstill to the Giridih town area in a motor car. They were caught by the local police, who stopped the car a few hundred yards from the outstill while it was going in the direction of Giridih. The men found in the car were duly convicted and fined under S. 47, Excise Act, for transporting liquor without a pass. And Abdul Gafur though he was not said to have been present at the outstill or in the ear that day, has been convicted under S. 59, which reads as follows:

When any offence punishable under S. 47 ......is committed by any person in the employ and acting on behalf of the holder of a license, permit, or pass granted under this Act, such holder shall also be punishable as if he had himself committed the offence, unless he establishes that all due and reasonable precautions were exercised by him to prevent the commission of such offence.

The learned counsel for Abdul Gafur has taken two grounds in this application. The first is that the prosecution of Abdul Gafur was invalid, because specific sanction of the Collector had not been obtained beforehand to prosecute him for breach of the conditions of his license. This ground is worth nothing. Abdul Gafur has been convicted for an offence under S. 59 read with S. 47 of the Act, and that did not require any previous sanction. Reference has been made to R. 118 of the Excise Manual, but that rule only lays down that:

Prosecution of vendors for breach of conditions of licences other than those of a serious character should be sparingly resorted to and only with the sanction of the Collector.

This rule has no application in the present instance, because Abdul Gafur was not being prosecuted for the breach of some unimportant condition of his license, but for the serious offence of being privy to smuggling by his servants.

The other ground taken is that S. 59, Excise Act, should not have been applied in Abdul Gafur''s case, been use he had no personal knowledge of the smuggling, and the other accused persons were not acting "on his behalf" when they attempted to smuggle the liquor. It is not disputed that Abdul Gafur was the license holder for the Bengabad outstill. And it has been proved (though Abdul Gafur himself denied it) that some at least of the other accused were his servants employed by him to manage Bengabad outstill. But it is contended that Abdul Gafur, being a man in a large way of business, never had time to attend personally to the Bengabad outstill, and was not privy to the offence committed by the other accused.

It is necessary therefore to consider what is the exact meaning of S. 59, Excise Act. No decision of this Court on the subject has been laid before me nor have I been able to find any. The learned counsel for the petitioner relies upon the observations made by a Division Bench of the Calcutta High Court in the case of Uttam Chand v. Emperor, (1911) 39 Cal 344 = 15 IC 1007 = 13 Cri LJ 591. Their Lordships were considering S. 56, Begal Act, the wording of which is identical with the wording of S. 59, Bihar and Orissa Act. They held that to support a conviction under S. 56, Bengal Excise Act, it is necessary to show not only that the servant was in the employ of the master, but also that he was acting within the scope of his employment and for the benefit of the master. In that case a servant whose duty it was to remain at his master''s shop and to conduct business there, was found travelling to another place with ganja in his possession in contravention of the rules and it was held that the master could not be convicted under S. 56, as his servant acted beyond the scope of his employment and for his own private purpose. The only difference between Uttam Chand v. Emperor, (1911) 39 Cal 344 = 15 IC 1007 = 13 CriLJ 591 and Abdul Gafur''s case is that in the former case it was not conclusively proved that the ganja came from Uttam Chand''s shop whereas in the latter case it was satisfactorily proved that the canisters of liquor had been brought from the Bengabad outstill.

The interpretation placed by the Calcutta High Court upon the words:

in the employ and acting on behalf of the license holder.

must be accepted as authoritative. So we have now to consider whether Nadir Mian, Maula Bux, etc. were acting within the scope of their employment and for the benefit of their master Abdul Gafur when they tried to sumggle liquor from Bengabad to Giridih. It was no part of their duty to distill any additional liquor over and above the requirements of the Bengabad shop. But there was nothing to prevent them from distilling additional liquor in their spare time, and it is difficult to imagine how their master could prevent them from doing so, unless he resided continually upon the premises. The excise officers, who gave evidence in the case, admitted that they had never seen Abdul Gafur at Bengabad, and that they had never informed him personally about such irregularities as they noticed at the outstill. They made some notes in the shop account book; but there is nothing to show that Abdul Gafur ever saw the account book, or had his attention drawn by the excise authorities to the defects noticed. Had Abdul Gafur been licensee of any liquor shop in the Giridih town area, we might have presumed that he was interested in the smuggling of liquor from his Bengabad outstill to such liquor shop. But it is not the prosecution case that Abdul Gafur had any such liquor shop in Giridih or in the direction towards which the car was moving'' when it was held up.

In my opinion, there is nothing to show that Nadir Mian and Maula Bux, etc., while smuggling the liquor were acting within the scope of their employment or for the benefit of their master Abdul Gafur. Nor is there anything to show that Abdul Gafur was privy to the smuggling. It follows therefore that S. 59 has been wrongly applied, and that the conviction of Abdul Gafur cannot be maintained.

I therefore allow the application of Abdul Gafur and set aside his conviction and sentence under S. 59/47, Excise Act, and acquit him.