RAJESWARI PRASAD Vs. THE STATE

JUDGEMENT

(1.) THIS is a revision against the appellate judgment of the Sessions Judge of Sambalpur maintaining the conviction of the Petitioner under Section 47(a) of the Bihar and Orissa Excise Act and the sentence of fine of (sic) passed by a Magistrate, First Class, of Sambalpur.

(2.) THE Petitioner was a licensed Excise vendor of a ganja shop in village Belpaher (P.S. Brajarajnagar) in Sambalpur district. His shop was searched by the Inspector, Excise (p.w. 3) on 25 -2 -1961 with the assistance of the Excise staff and 14 seers and 74 tolas of non -duty paid ganja and 53 tolas of duty paid ganja in excess of the shop account were seized. Opium weighing 5 tolas kept in a packet inside the shop was also recovered. There was no permit for stocking of the opium. At the time of the seizure the Petitioner was not in the shop but his two salesmen namely Radha Prosad and Ram Chandra Prosad were present.

(3.) FOR the purpose of applying Section 59 against the Petitioner it is undoubtedly the duty of the prosecution to establish in the first instance -(1) that an offence under Section 47 of the Bihar and Orissa Excise Act was committed and (2) that it was committed by a person in the employ and acting on behalf of the Petitioner. Once these ingredients are established by the prosecution, the burden would shift on the Petitioner to establish that "all due and reasonable precautions were exercised by him to prevent the commission of the offence". Here, on the unchallenged facts it is clear that the two salesmen of the Petitioner were guilty of an offence under Section 47 of the Bihar and Orissa Excise Act inasmuch as the seized excisable articles were found in their unauthorised possession. That they were the salesmen of the Petitioner is not challenged, but it was urged that while remaining in possession of the goods in the shop they were not "acting on behalf of the Petitioner". This argument does not appeal to me. Being the salesmen of the Petitioner they were authorized to sell Hcensed goods to customers, and hence while sitting in the shop of the Petitioner they must be held to have been acting on behalf of the Petitioner.