1. This is a reference by the learned Additional Sessions Judge, Allahabad, recommending that the conviction of Ram Narain Saraswat under Section 155, Municipalities Act, and a sentence of fine ,of Rs. 75 passed by the Joint Magistrate,. Allahabad, be set aside. The accused was tried summarily for introducing within the limits of the Allahabad Municipality dutiable articles without payment of the octroi duty. Ram Narain. Saraswat is the proprietor of a certain concern of which one U. N. Saraswat is the manager. A certain consignment, addressed to Ram Narain, was received by rail. Delivery was taken on behalf of the consignee by U. N. Saraswat. At the E.I.R. Station octroi barrier he-was directed to take the consignment to the head octroi office and pay a duty of Rs. 16. Under certain rules the barrier staff of the Municipality cannot collect octroi duty if it exceeds a certain amount. The sum of Rule 16 payable by R N. Saraswat the consignee, was in excess of such amount and was to be paid at the head office. U. N. Saraswat was handed over a challan and directed to take the goods to the head octroi office for payment of the octroi duty. U. N. Saraswat did not go to the head octroi office, but brought the goods to the business premises of Ram Narain Saraswat. After some days (the exact time does not appear on the record) the Municipal Board sent a reminder to Ram Narain, the consignee, asking for payment of the octroi duty. The latter is said to have expressed his willingness at one time to pay the duty. No payment was, however, made eventually. The Municipal Board then took criminal proceedings under Section 155, Municipalities Act against both U. N. Saraswat and R. N. Saraswat. The former Was convicted and sentenced at a separate trial, and the latter has been sentenced as already stated. Section 155, Municipalities Act runs as follows:
A person introducing or attempting to introduce, within octroi limits or abetting the introduction within octroi limits of any goods or animals liable to the payment of octroi for which the octroi due on introduction has neither been paid nor tendered, shall be punished with a fine which may extend either to ten times the value of such octroi or to Rs. 50, whichever is greater, and which shall not be less than twice the value of such octroi.
2. The learned Magistrate has expressed the opinion that R. N. Saraswat, as the head of the firm, is liable as an abettor. In my opinion Section 155, Municipalities Act; does not enact a rule which is sufficiently comprehensive to justify the conviction. of the proprietor as such of the firm to which dutiable articles are consigned, unless it is shown by evidence that the proprietor of the firm himself introduced or did some act amounting to abetment of introduction within the limits of the Municipality, goods on which duty should have been paid. If there had been evidence to show that U. N. Saraswat brought the goods to R. N. Saraswat instead of taking them to the octroi head office and the latter became aware of the circumstances in which the goods were brought to him without payment of octroi duty and nevertheless did not pay the duty the position might have been different. The evidence does not show when and in what circumstances R. N. Saraswat was informed by the Municipal Board that octroi duty had not been paid on a certain consignment. The fact that some correspondence took place between the Municipal Board and Ram Narain Saraswat and that at one time the latter was willing to pay the octroi duty but for some reason, not apparent on the face of the record, he did not pay does not justify the inference that he abetted the introduction of the articles within the limits of the Municipality without payment of the octroi duty. In this state of the evidence I do not think that the conviction of Ram Narain Saraswat can be supported. Accordingly I accept the reference, set aside the conviction and sentence and direct that the fine, if paid, be refunded.