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.
4. But assuming, on the other hand, that the license was not binding upon the petitioner, the sale by the petitioner was without a license or pass from the Collector.' Such a sale is forbidden by Section 16 of the Abkari Act, subject to two exceptions within which the petitioner's act does not fall; and Section 43 Clause (g) makes the sale so prohibited a criminal offence.
5. On either view of the case, the petitioner was rightly found guilty. We decline, therefore, to quash the conviction and sentence. The rule is discharged.
6. The Abkari Act provides that anyone who sells liquor without a license or in contravention of the conditions of a license, commits an offence. The license in this particular case provides that the selling must be by the license-holder or by a servant of his approved by the Collector whose name is endorsed on the license. The person convicted in this case pretended to be, but was not, a servant approved by the Collector and on such pretence sold liquor in his master's shop. He, not the license-holder, has been convicted of an offence. Rightly so, it seems to me; it does not matter, it is merely of academic interest to enquire, whether he sold without a license or in contravention of the terms of the license. One or the other assuredly he did; so I would decline to interfere.