ORDER

J.N. Takru, J. - This is an appeal by the State against the judgment and order of the learned City Magistrate, Rampur, dated 17-2-1964, acquitting the Respondent u/s 9(a) and 9(b) of the Central Excises and Salt Act and Rule 151(e) of the Central Excise Rules, 1944.

2. According to the prosecution, the Respondent was a licensed tobacco dealer. In July 1962 his warehouse was inspected by PW-I M.P. Mathur, a Dy. Superintendent of the Central Excise and Customs, with the following result:

(1) Under Entry No. II/1 dated 15-2-1962, the Respondent had a balance of 668 mds. 2 srs. and 12 Ch. (net weight) of stalks, but on full weighment they weighed only 474 mds. 20 srs and 2ch.

(2) Under Entry No. II/2 dated 4-3-1962 the Respondent had 105 bags of stalks weighing 157 mds. 21 srs. but at the time of inspection only 71 bags were available in the warehouse. Out of these 71 bags, only 61 bags weighing 91 mds. 27 srs. tallied with the description and weight given in the warehouse register, while the contents of the remaining 10 bags were removed from the warehouse and 15 mds. 24 srs. of local patti choora was substituted in their place.

(3) Under Entry Not 1/19 dated 4-3-1962 the recorded balance was 23 bundles and one bag weighing 45 mds. 17 srs. but on weighment the individual packages showed wide variations from their recorded weights and out of them three bundles and the bag were found filled with local patti choora instead of Kampila Ganj and hole leaf and weighed 4 mds. 26 srs. as against their recorded weight of 7 mds. 27 sfs.

3. The case for the prosecution was that the aforesaid goods had been removed from the warehouse otherwise than as provided in the Central Excise Rules and without payment of the duty leviable on them and the Respondent was therefore, guilty for the contravention of the provisions of Section 9(a) and 9(b) of the Central Excise Act-hereinafter called the Act-and Rule 151(c) of the Central Excise Rules-hereinafter called the Rules.

4. The Respondent pleaded not guilty though he admitted that the shortages detected by PW 1, M.P. Mathur were correct. His defence, shortly stated, was that the work of the warehouse used to be looked after by his servant Aqil Ahmad Khan, who, during the Respondent's absence on Haj from March to June 1962, committed theft of the aforesaid goods and created the shortages found by PW 1, M.P. Mathur. The Respondent there fore pleaded that he was not criminally liable for those shortages.

5. The prosecution produced PW 1, M.P. Mathur and the various registers kept at the Respondent warehouse, to prove its case, while the Respondent examined DW 1, Irshad Husain in his defence. The learned City Magistrate accepted, the evidence of PW 1, M.P. Mathur, but held that as the prosecution has failed to prove that the Respondent was either personally or through his servant liable for those shortages he could not be held guilty Under Rule 151(c) of the Rules or Section 9(a) and 9(b) of the Act and on this finding he ordered his acquittal. Hence this appeal.

6. The learned Govt. Advocate for the State vehemently contended that as on a correct interpretation of Rule 151 the owner of the goods warehoused', was absolutely and unconditionally liable for any breaches thereunder, the learned City Magistrate was in error in ordering the acquittal of the Respondent. After examining the relevant provisions of law and the authoriteis placed before me and hearing the learned Counsel for the parties, I am, however, of the opinion that the aforesaid contention is not sound. I shall, therefore proceed to give my resasons for coming to that conclusion, after quoting the material parts of the Rule in question. Thus quoted the Rule reads as follows:

151. Offences with respect to Warehousing:

If any owner of goods Warehoused...by himself or by any person in his employ or with his connivance, commits any of the following offences, namely:

(a)............(b)............(c)............or removes goods from, a warehouse other