Prinsep and Stephen, JJ.
1. After consideration we think that this Rule should be discharged. The question raised is as to the application to this case of Queen-Empress v. Harridas San (1890) I. L. R. 17 Calc. 566., in which it was held that a servant who handed liquor in the presence of his master which had been sold contrary to his license could not be properly convicted of the sale, which was a sale by his master, and was merely a mechanical act of handing the liquor to the purchaser In the present case the servant received the money for ganja sold by his master in contravention of the terms of his license, master and servant both being present at the sale. The Sessions Judge on appeal has apparently convicted the servant of abetment by the application of Section 114 of the Indian Penal Code, which is, by Section 40 as amended, extended to offences under special laws, such as the Excise Act.' But, as has been held in another case, Section 114 would not apply unless the person present abetting the offence would, if absent, have been guilty of abetment. 'We think, however, that the findings of the Sessions Judge bring the offence committed by the servant within Section 34 of the Indian Penal Code. Such a case was not considered by the learned Judges who decided Queen-Empress v. Harridas San (1890) I. L. R. 17 Calc. 566., and in this view we think that the conviction and sentence were correct. We discharge this Rule.