Prinsep and Stanley, JJ.
1. The petitioner has been convicted by the Magistrate of having kept incorrect accounts of a shop of which he was a licensed vendor of opium, and thereby of having committed a breach of the rules under the Opium Act, and thus of having committed an offence punishable under Section 9 of the Act, and he has been sentenced to a fine of Rs. 200 or, in default, to undergo rigorous imprisonment for four months. On appeal, the Sessions Judge has affirmed the conviction and sentence, but has held that the petitioner has brought himself within the purview of Rules 39 and 40 of the Government rules.. We have not been able to find these rules, but Mr. Leith, who appears for the Government in support of this conviction, informs us that he has reason to believe that these rules are obsolete rules, which have been re-placed by certain rules in the hands of those who appear in this case representing the adverse parties. Now we should not be inclined to set aside this conviction if, notwithstanding this reference to obsolete rules by the Sessions Judge, it could be shown to us that the facts on which the petitioner has been convicted by both the Magistrate and the Sessions Judge would amount to a breach of the law rendering him so punishable, but we have been unable to find any legal authority justifying the conviction and sentence passed.
2. The petitioner has been convicted under Section 9 of the Opium Act of 1878 of having contravened the rules made under Section 5 of that Act. Section 5 declares that the Local Government, with the previous sanction of the Governor-General in Council, may make rules consistent with the Act regulating the sale of opium, and the case for the prosecution is that, by making false or incorrect accounts regarding the sale of opium, the petitioner has contravened these rules. Now, Section 15 of the rules issued by the Government, of Bengal with the sanction of the Governor-General in Council, on the 21st February 1898, declares that a person to whom a license has been granted may sell opium by retail in accordance with the conditions specified in the license. We are next referred to the subsidiary rules issued under the authority of the Board of Revenue, the appendix attached to which sets out what is described as Form I, professing to have been made under Rule 15 Notification No. 1255 S.R., published in the Calcutta Gazette, 23rd February 1898, (1) already referred to. This appendix contains the conditions under which opium licenses are granted. Amongst these conditions, no doubt, is an obligation set out in Rule 13 in regard to the regular maintenance of a register in the prescribed form showing the sales of opium and other details relating thereto, and Rule 18 sets out the penalty for an infringement of any of the abovementioned conditions, or of any of the conditions imposed by the Opium Act of 1878, or by the rules made under that Act, viz., that the license shall be cancelled. But there is nothing in any of the rules made by the Government under Section 5 of the Act which would make the preparation of an incorrect account punishable under Section 9. We cannot consider that Rule 15 regularly made under Section 5 of the Opium Act, which enables a person to whom license has been granted to sell opium by retail, in accordance with the conditions specified in the license, would subject him for any breach of any of these conditions to a penalty under Section 9, unless there was some specific rule declaring that any such breach would so render him liable. The conviction and sentence must, therefore, be set aside and the fine, if paid, must be refunded.