Robert Stuart, C.J.
1. This is an application for revision of the conviction, under Section 62 of the Excise Act X of 1871, of Charles Seymour, an assistant employed in Newton's Hotel at Allahahad, and of the sentence passed on him to pay a fine of Rs. 100, or one month's imprisonment in the Civil Jail, although Mrs. Newton is the real party concerned.
2. I must, in the first place, remark that, even if the conviction could be supported, the prosecution of the defendant was in my opinion an extremely harsh and uncalled for proceeding, and I regret to say that the Assistant Magistrate appears to have acted with reprehensible precipitancy, and without considerate and thoughtful attention to the facts of the case, and the provisions of the Excise Law, as embodied in Act X of 1871, and I have further to remark here that the sentence passed was out of all proportion to the very venial character of the offence, if offence there was, a nominal line of say one rupee being quite sufficient.
3. But in my judgment the legality of the conviction is, to say the least, so doubtful that it ought not to be allowed to stand. On the 30th October 1877, the Collector of Allahabad granted a license to Walter Newton, Mrs. Newton's husband (at present I understand in England), for the sale of spirituous and fermented liquors in the hotel, and this license bears that it was to have effect from the 30th October to the 31st December 1877. The expiry of the license on the latter date does not appear to have been noticed by the authorities themselves, and Mrs. Newton went on conducting the hotel, including of course the selling of spirituous and fermented liquors, unmindful of the license until the 11th January, when it suddenly occurred to her to obtain a renewal of it For that purpose she applied at the Collector's office and ohtained a renewal of the license up to the 31st March 1878. Nothing was said to her at the time about her having incurred any of the penalties of the Act, and this perhaps is not to he wondered at, for the neglect to renew the first license, when it expired on the 31st December, was not ascertained by the authorities by means of any enquiries or watchfulness on the part of themselves or their officers, but was simply brought to the knowledge of the Collector by Mrs. Newton herself, and the license was handed back to her with this simple endorsement: 'This license is extended up to the 31st March 1878.' It is further to be noticed that one of the conditions of the license was that a monthly fee of Rs. 8-5-4 should be paid to Government in advance for every month of the term for which the license was granted, and that all claim in respect of this condition had been fully satisfied, and, indeed, more than satisfied by Mrs. Newton, the whole aggregate fee amounting to Rs. 25 for the three months from the 30th October to the 31st December 1877, having been paid up in advance, and a similar aggregate fee of Rs. 25 for the term from the 1st January till the 31st March 1878, having been paid and accepted by the Government on the 11th January, when the renewal of the license was, without any objection or demur, granted. Now such being the state of the case, I really think that the Assistant. Magistrate might have paused and considered whether it was necessary to prosecute Mrs. Newton for the slight illegality she had ostensibly been guilty of in selling spirituous and fermented liquors in her hotel for about ten days without formally renewing her license: and if he had so paused and considered, he might perhaps have seen that the renewal endorsement on the license without any objection stated, and the payment and acceptance in advance of the whole lee due under the license, were strong circumstances of condonement on the part of the Government of any little neglect Mrs. Newton may have been guilty of, and that they showed the possession by Mrs. Newton of a license with all the conditions fulfilled, and more than fulfilled, entitling her to sell spirits and liquors, from the 30th October 1877 to the 31st March 1878, uninterruptedly. Most, reasonably therefore might she have believed that she had, although somewhat irregularly yet sufficiently, discharged her duty in the matter, and that she might go on conducting her hotel in peace. But it will scarcely be believed that three days afterwards her assistant, Seymour, was brought up before Mr. Thomson, the Assistant Magistrate, tried and convicted under Section 62 of Act X of 1871, and punished with a fine of Rs. 100 or one month's imprisonment in the Civil Jail, a sentence the severity of which would seem to imply that, in the opinion of the Assistant Magistrate, Mrs. Newton had been guilty of a wilful attempt to defraud the revenue, a view of her conduct, however, which is simply ridiculous, for she and her assistant, Seymour, had merely and unintentionally overlooked for a few days the necessity of renewing the license at the proper time, under the venial and excusable circumstances I have explained. And so far from defrauding the revenue, the Government had not only lost nothing at the hands of Mrs. Newton, but had in fact accepted from her more than they were entitled to under their own conditions.
4. Such being the true state of the case, is this conviction sustainable? I think not. Section 62 of the Excise Act X of 1871 provides, among other things, that 'every person other than a licensed vendor who sells any spirituous or fermented liquors shall for every such offence be punished with fine not exceeding Rs. 500.' Now would it he reasonable to hold, on the facts and on a sound reading of the law, that Mrs. Newton was not a licensed vendor, that is, a vendor altogether unlicensed? At least, after the explanation I have given of the conduct of the authorities, it does not lie in their mouth to contend that between the 1st and 11th January Mrs. Newton was acting without any authority or license from them, and that she had no reason to believe that in their opinion she had violated the law and laid herself open to its penalties. But a careful examination of the Act will show that in no view of the case could Mrs. Newton be regarded as other than a licensed vendor for the whole period up to the 31st March, during which the license was in operation. The portion of the Act dealing with the subject of licenses is ch. vi, including Sections 31 to 35. Sections 31 and 32 deal with licenses for a year. It may be remarked, however, in passing, that Sections 32 supplies a strong argument by analogy against the conviction in the present case. By that section it is provided that, where there is an intention not to renew the license, 'notice of such intention shall be given to the Collector at least fifteen days before the year expires; and if such notice he not given, and the license be not recalled by the Collector, the license held and engagement entered into by every such person shall remain in force as if the same license and engagement had been formally renewed.' There seems no reason why this should not hold good in the case of a license for less than a year, as indeed, as I shall presently show, it rather seems to do, and there is not a word in the Act, from beginning to end, showing it to be the intention of the Legislature that it shall be otherwise in the case of short licenses a view of their position in this respect which is only too abundantly supported by the conduct of the parties in the present case, and especially on the part of the Government. Section 33 provides that the Chief Revenue authority may regulate the form and condition of all licenses under the Act, and rules for these purposes appear to have been issued, but I do not observe among them any rule relating to the lapsing or renewal of a license for three months. I observe, however, that one of the rules provides that any party shall be at liberty to cancel such a license at the close of any quarter of the year, a provision which previously derives considerable force from that contained in Section 32 to which I have directed attention, and which therefore tolls rather against than in favour of his conviction. Section 34 empowers the Collector to recall or cancel any license if the tax or duty therein specified be not paid, or in case of a violation of any other condition thereof, or of the holder being guilty of breach of the peace or any other criminal offence; and the same section proceeds to provide for the case where the Collector desires to recall a license, and Section 35 relates to the surrender of a license by the holder. Now, even if things were entire and there were none of the peculiarities relating to the conduct of the Excise authorities to which I have adverted, I think it would be quite allowable to hold that the term 'licensed vendor' in Section 62 must be taken to mean a vendor licensed or unlicensed within the meaning of the section of the Act I have pointed out on licenses generally, and constituting ch. vi, and a person not being in position, as Mrs. Newton plainly is not, cannot be said to have incurred the penalty of Section 62. The only section of the Act which appears to me to have the remotest bearing on such a, case as the present is Section 57, which provides for the refusal to produce a license on the demand of an Excise officer, and also for a breach of any of the conditions of the license granted, neither of which circumstances apply to the case of Mrs. Newton, for she was never asked by any Excise officer to produce her license, nor has she committed any breach of any of its conditions. The present case, therefore, appears to me to he wholly unprovided for by the Excise Act X of 1871, and I must add that is very properly unprovided for, for I do not believe it to have been the intention of the Legislature to punish an innocent person like Mrs. Newton, who was guilty of nothing but a very intelligible, and in my judgment excusable, little neglect or delay, winch showed no intention on her part to cause any of the mischief against which the Excise Act is directed.
5. For these reasons I set aside the conviction and sentence in this case, and direct the fine of Rs. 100, if it had been paid, to be returned to the applicant.