JUDGMENT

B. D. Gupta, J. - The respondent Daya Shanker along with, his father Jwaia Prasad was tried by a First Class Magistrate of Fatehgarh in respect of a complaint filed by an Assistant Collector of Central Excise that they had committed offences under Section 9 of the Central Excises and Salt Act, 1944, here-matter referred to as the Act. The learned Magistrate found that they had Doth committed offences under clauses (a) and (b) of Section 9 of the aforesaid Act, and accordingly sentenced them to pay a fine of Rs. 2000/- each. Both appealed against the aforesaid order. The learned Sessions Judge, whilst maintaining the conviction of Jwala Prasad, and the sentence awarded to him set aside the conviction and sentence of the respondent Daya Shanker and acquitted him of the offence for which he had been tried. Jwala Prasad the father, appears to have submitted to the judgment of the learned Sessions Judge, but the State Government has filed this appeal against the acquittal of the respondent Daya Shanker.

2. The facts of the case may now be briefly summarised. Firm Devi Prasad Jwala Prasad carried on business at Kannauj. The proprietor of the firm was Jwala Prasad and it was a licensee for maintaining a bonded ware-house, for storage of tobacco, under a licence from the Central Excise authorities, under the provisions of the Act. On February 3, 1959, a Deputy Superintendent of Central Excise at Kannauj went to inspect the ware-house. It was alleged that both the father Jwala Prasad and his son the respondent Daya Shanker avoided inspection by making themselves scarce. The Deputy Superintendent, however, got the locks removed, inspected the ware-house and found a number of irregularities involving breaches of the Act and the Rules framed thereunder. On June 15, 1959, the Assistant Collector of Central Excise at Fatehgarh filed a complaint against both alleging commission by them of offences under Section 9 of the Act. A perusal of the complaint, as also of the judgment of the learned Magistrate, makes it clear that an objection on behalf of the accused persons was raised before the learned Magistrate that the complaint under Section 9 was vague inasmuch as it was not clear as to which of the various clauses oi Section 9 were alleged to have been contravened. The learned Magistrate took the view that though there were four sub-clauses in Section 9 of the Act the offences alleged to have been committed appeared to fall under clauses (a) and (b). What is important to notice is that both the accused were tried on that footing, found guilty of contravention of the aforesaid clauses and convicted accordingly.

3. The learned Judge, on appeal, took the view that so far as the respondent Daya Shanker was concerned he could not be convicted for the reason that he was neither the owner nor an agent, as contemplated by rule 3 of the Central Excise Rules, 1944, hereinafter referred to as the Rules, so as to be deemed to be the owner. The learned Judge accordingly acquitted the respondent Daya Shanker.

4. The learned Government Advocate, who has appeared before us in support of this appeal, has raised two points. The first is that the respondent was guilty under clauses (a) and (b) of Section 9 of the Act, and secondly, that in any case the respondent is guilty as an abettor under clause (d) of Section 9 of the Act. Learned counsel has urged that there was no controversy that the respondent was the manager of the firm and looked after its business on behalf of his father Jwala Prasad who was the sole proprietor of the firm and that being so the offences alleged to have been committed by the accused should have been found to have been committed by the respondent also inasmuch as Section 9 of the Act referred to "whatever" committed the offences laid down therein. Learned counsel's contention was that the learned Judge was wrong in referring to the provisions of rule 3 as confining the liability for contravention to an agent authorised and ap