Full Judgment
Caspersz and Sharfuddin, JJ.
1. The petitioner, Uttam Chand, has an extensive business in excise shops, of which lie holds a considerable number in nine districts of this province, including a gania shop at Koilwar, in the district of Arrah. His Koilwar servant, Lakhichand, was convicted, under Section 46 of the Bengal Excise Act (V of 1909), for being in possession of 2 1/2 seers of ganja which lie was attempting to transport from Arrah district to Bindhyachal. Lakhichand confessed his guilt.
2. The question now is whether the conviction of the petitioner, the master of Lakhichand, can be supported on the language of Section 56 of the Act. The section is as follows: 'When any offence punishable under Section 46 is committed, by any person in the employ and acting on. behalf of the holder of a license granted, under this Act, such holder shall also be punishable as if he himself had committed, the offence, unless he establishes that all due and reasonable precautions were exercised by him to prevent the commission of such offence.'
3. In the opinion of the convicting Magistrate, the petitioner has so many servants and so much business to attend to, that it was due to laxity of supervision on his part that his servant Lakhichand was able to leave his Koilwar shop and commence travelling to Bindhyachal with 2 1/2 seers of gania.
4. The substantial grounds argued on this Rule are two in number. With regard to the fourth ground specified in the petition, there is no finding in the judgment of the convicting Magistrate, that the 2 1/2 seers of ganja belonged to the petitioner, that is, came from his Koilwar shop. The Magistrate says: 'It is extremely probable that he (Lakhichand) took the gania from the Koilwar excise shop of the accused.' That, however, is not a sufficient finding on which to implicate the master of Lakhichand. The other ground, the third in. the petition, is that Lakhichand was acting outside the scope of his employment, and. was not acting on behalf of the petitioner when, he committed the offence under Section 46(a) of the Excise Act.
4. Section 46 enumerates various offences, and we think that, if a master is to be held liable for all the acts of his servants, his liability must extend to all parts of Section 46. As we put it to the learned Deputy Legal Remembrancer, who appeared to show cause, 'if his servant, Lakhichand, had cultivated ganja in the garden of his own private residence, would the master be liable for that act?' The only possible answer to this question is in the negative.
5. The language of Section 56 is very clear, and does not in any way conflict with the general principle alluded to in Suffer Ali Khan v. Golam Hyder Khan (1866) 6 W.R. Cr. 60 namely, that a master is not criminally responsible for the wrongful act of a servant, unless he can be shown to have expressly authorised it. That case was one of mischief, but the principle is of extensive applicability Under Section 56 the prosecution must show that Lakhichaud was not only in the employ of the petitioner, but also acted, on his behalf In removing the ganja from, his shop, Lakhichand was, presumably, committing a criminal offence. His business was to remain at the Koilwar shop, and there to conduct sales for the petitioner; but when he travelled beyond the scope of that business, it is not possible to implicate the petitioner in his acts which were not done for the benefit of the petitioner, but rather for Lakhichand's private purposes. The expression 'on behalf of' connotes some benefit to the person on whose behalf another person may act.
6. Various authorities have been, cited to us on constructions of the Arms Act, the Opium Act and the Bengal Motor Car and Cycle Act. We have examined them all, but we have not derived such, assistance from them as would warrant a detailed discussion. There is one case, to which we may allude, namely, Emperor v. Haji Shaik Mahomed Shustari (1907) I.L.R. 32 Bom. 10 which, was cited to us by the learned. Deputy Legal Remembrancer, but it does not carry his arguments any further than the principle we have already mentioned. No doubt when a servant does anything within the scope of his employment for that purpose, his action will be binding on the master, and the master will be criminally liable for any wrongful, act of the servant. In the particular case cited, which was under the Indian Emigration Act (XXI of 1888), the master was deemed to be so liable.
7. In these circumstances, we think, the conviction cannot be supported. It is therefore set aside, and the Rule made absolute. Any line paid or levied will be refunded.