1. This is a reference by the learned Sessions Judge of Azamgarh recommending that a sentence of fine passed on one Lachmi Shanker should be set aside. This Lachmi Shanker is a boy of about 15 years of age, the son of Ram Jatan. Ram Jatan is the licensee of a drug shop. The case for the prosecution which was instituted against both the father and the son was that the excise inspector went to the shop on the evening of 16th April, that he found Lachmi Shanker in charge of it and that Lachmi Shanker refused to let him inspect the shop with the result that he had to seek for police assistance and that thereafter when he did inspect the shop on the next day he found that certain breaches of the rules had been committed, namely that the licence was not produced, that there were some unsealed packets of drugs and that the stock was in excess of the book balance. The charges were therefore five, two relating to 16th April and three relating to 17th April. The father and the son were fined Rs. 50 each. The father's case is not before me.
2. In respect of the son the learned Sessions Judge has made the reference because he thinks that it cannot be said that the son was liable as being employed by the father. If the fact is that the son was in charge of the shop on 16th April I think it must be held that he was employed at least for the time that he was in charge and consequently that he is liable for any breaches of the rules which took place at that time. In the absence of evidence that he was a permanent employee, I do not think that he can be held responsible for anything which happened on 17th April when his father was present. The two breaches of the rules on 16th April, which were alleged to have taken place, were firstly that the excise inspector was not allowed to inspect the shop, and secondly that Lachmi Shanker who was a minor was in charge of the shop.
3. I should have been inclined to hold that Lachmi Shanker could be punished for the first of these two breaches if it occurred, but I find from the Magistrate's judgment that he says that from the evidence before him it was not proved that the excise inspector was not allowed to inspect the shop when it was open after sunset on 16th April 1935. It is true-that he said earlier in the judgment with reference to the five breaches of the rules which I have mentioned that the accused were guilty of these breaches, but it is at least not clear from his judgment whether he really meant to hold that the offence of not allowing the excise inspector to search the shop was proved or not. As for the other breach of the rules said to have been committed on 16th April I do not think that the boy Lachmi Shanker can be held to be guilty of it. The rule is that the licensee or person employed by him shall not put a minor in charge of the shop. Lachmi Shanker was a minor and he was in charge of the shop, but he did not put himself in charge of it. In these circumstances I think it cannot really be said that Lachmi Shanker committed any offence. I therefore set aside the conviction and sentences passed upon him. I acquit him and direct that the fine or any part of it which he may have paid shall be refunded to him.