EMPEROR Vs. ISAK SOLOMON MACMULL

JUDGEMENT

(1.) THIS is an appeal by accused No.1 against an order of the Presidency Magistrate, Second Court, convicting him under Sections 7 and 8 of Act XXIV of 1946 read with Clauses 5 and 22 of the Motor Spirit Rationing Order, 1941, and sentencing him to rigorous imprisonment for six months and a fine of Rs. 50,000, in default further rigorous imprisonment for six months.

(2.) THE prosecution case was that a11 the three accused on July 18, 1947, supplied four gallons of petrol for Rs. 25 to a bogus customer without coupons as required by law; that the petrol was supplied by accused No.3; accused No.2 was the cashier and accused No.1 was the owner and the holder of the licence of the petrol pump from which the petrol was supplied. THE learned Presidency Magistrate convicted accused No.1 and accused No.3 and acquitted and discharged accused No.2. From that order of conviction and sentence only accused No.1 has preferred this appeal.

(3.) THE Government Pleader, relying on a decision of a divisional bench of this Court in Emperor v. Mahomed Bashir (1945) 48 Bom. L. R. 46, contends that where there is an absolute prohibition and no question of mens rea arises, the master is criminally liable for the acts of his servant. In this case Mr. Justice Divatia and Mr. Justice Bavdekar were considering a case where the proprietor of a hotel was charged for keeping it open during hours beyond those permitted to him under his licence. THE hotel was being run by the manager, and the question was whether the master was vicariously liable for the acts of his servant, and the bench consisting of these two learned Judges held that the proprietor was liable for having committed the offence under Section 81 (4) of the Defence of India Rules read with the relevant notification. In coming to that conclusion the Court accepted the principle that where there is an absolute prohibition of an act then the person committing the act is liable for the penalty provided in the statute whether he had mens rea or not.