Uttam Chand v. The King-Emperor Opposite Party.

The Petitioner, Uttam Chand, has an extensive business in excise shops of which he holds a considerable number in nine districts of this province including a ganja shop at Koelwar in the District of Arrab. His Koelwar servant, Lakhi Chand, was convicted, under sec. 46 of the Bengal Excise Act (V of 1909), for being in possession of two and a half seers of ganja which he was attempting to export from Arrah District to Bindhyachal. Lakhi Chand coufessed his guilt.

The question, now, is whether the conviction of the Petitioner, the master of Lakhi Chand, can be supported on the language of sec. 56 of the Act. The section is as follows:—“When any offence punishable under sec. 46 is committed by any person in the employ and acting on behalf of the holder of a licence granted under this Act, such holder shall also be punishable as if be 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.”

In the opinion of the convicting Magistrate, the Petitioner had so many servants and so much business to attend to that it was due to laxity of supervision on his part that his seivant, Lakhi Chand, was able to leave his Koelwar shop and commence travelling to Bindhyachal with 2½ seers of ganja.

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 2½ seers of ganja belonged to the Petitioner, that is, came from his Koelwar shop. The Magistrate says:—“It is extremely probable that he (Lakhi Chand) took the ganja from the Koelwar excise shop of the accused”. That, however, is not a sufficient finding on which to implicate the master of Lakhi Chand. The other ground—the 3rd in the petition—is that Lakhi Chand was acing outside the scope of his employment and was not acting on behalf of the Petitioner when he committed the offence under sec. 47(a) of the Excise Act.

Sec. 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 sec. 46. As we put it to the learned Deputy Legal Remembrancer, who appeared to show cause, “If his servant Lakhi Chand had cultivated ganja in the garden of his own private residence would the master be liable for the act?” The only possible answer to this question is in the negative.

The language of sec. 56 is very clear and does not, in any way, conflict with the general principle alluded to in Suffer Ally Khan v. Golam Hyder Khan(1), 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 authority. Under sec. 56, the prosecution must show that Lakhi Chand was not only in the employ of the Petitioner, but also acted on his behalf in removing the ganja from his shop. Lakhi Chand was, presumably, committing a criminal offence His business was to remain at the Koelwar 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 Lakhi Chand's private purposes. The expression “on behalf of” connotes some benefit to the person on whose behalf another person may act.

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 Shustan(2), 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 1883), the masfer was deemed to be so liable.

In these circumstances, we think the conviction cannot be supported. It is therefore set aside and the Rule made absolute. Any fine paid or levied, will be refunded.

Rule made absolute.