BALLA SAKHARAM KOREGAONKAR Vs. EMPEROR

JUDGEMENT

(1.) This is an application made under our revisional jurisdiction for the reversal of the order of the Fourth Presidency Magistrate of Bombay, convicting the petitioner of the offence, under Section 43 (g) of the Bombay Abkari Act (V of 1878), of selling liquor without a permit from the Collector of Abkari and sentencing the petitioner to pay a fine of Rs. 100 or, in default, to suffer three weeks rigorous imprisonment. The defence of the petitioner at the trial was that he had sold the liquor under a permit granted to him by the Collector as a servant of Tukaram Mahadu Warekar, who held a license under the Act. The learned Magistrate has found upon the evidence that the petitioner is not the person to whom the permit was given by the Collector.

(2.) It is contended before us in support of the application that the conviction is illegal because the petitioner sold the liquor merely as a servant of the licensee and that to such a sale Clause (g) of Section 43 of the Abkari Act does not apply.

(3.) Assuming that the sale was effected by the petitioner as a servant of the licensee, the conditions of the license were in that case binding upon him. The condition of the license (Clause No. 4 of Exhibit-E) was that "the licensee shall personally carry on the business of his shop." Here the licensee did not carry on the business personally; but the business was carried on by the petitioner as the licensee's servant without any permit. The condition of the license bound the petitioner upon the assumption that the license was binding upon him, as it was upon his master, to sell the liquor when his master carried on its business personally. That condition was broken and the petitioner's act, upon this view, fell within Clause (g) of Section 43 as being a sale in contravention of the license.