TMI Blog1948 (3) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... esman of his petrol shop at Bulandshahr. Haji Mohammad Ashfaq held a registration certificate in the name of Haji Mohammad Ashfaq Co. as required by the U.P. Sales of Motor Spirit Taxation Act of 1939 for carrying on the business of a retail dealer in respect of this commodity. The certificate was for a period of one year. It was to expire on 31st March, 1946. Soon after the expiry of the certificate on 10th April, 1946, Haji Mohammad Ashfaq died leaving behind him a son, Mohammad Din, who thereafter became the sole proprietor of the Delhi and Bulandshahr business. The business which Haji Mohammad Ashfaq was carrying on in Bulandshahr did not stop after the expiry of the certificate. It went on as before with the result that on the report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s upon retail dealers. Rule 2 defines 'Manager' or 'Agent' for the purposes of the U.P. Sales of Motor Spirit Taxation Act of 1939 as "a person expressly authorised in writing by a retail dealer to act as his manager or agent for all or any of the purposes of these rules and in respect of all or any place or places of business of retail sale, such authority having been accepted in writing by such person and filed with the registering authority." There is nothing to indicate that Abdul Samad Khan is a manager or agent within the meaning of Section 2(b) of the Act. In point of fact, he has been prosecuted as a retail dealer within the meaning of Rule 11 of the rules made under Act No. I of 1939. For elucidating the point which has arisen in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r without holding a registration certificate. An examination of the scheme of the rules framed under the Act shows that in the rules there is a distinction between a retail dealer and a servant employed by him and that it is the former and not the latter who is answerable for contravening the provisions of the Act and the rules made thereunder. It is further clear from the rules that a retail dealer can function in more than one district and that as laid down in Rule 2 (c)(ii) in case a retail dealer applies for a registration certificate in respect of more than one district, the Excise Commissioner is the registering authority. Rule 4(2)(ii) makes it clear that an application for registration certificate can be made by the retail dealer to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the accused was himself carrying on the retail business. The person who was carrying on the retail business was the son of Haji Mohammad Ashfaq, Mohammad Din. Reference may be made in this connection to two cases, on which reliance was placed by learned counsel for the applicant. The first of these is a case, Lewis v. Graham, [1888] 20 Q.B.D. 780, in which the question of the meaning to be attached to the words "carry on business" was considered with reference to the employment of a clerk by a solicitor at his office in the City of London. On the question whether the clerk could be said to be carrying on business, Lord Coleridge, Chief Justice, observed, that: "In a certain sense the defendant was carrying on business, because he wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k, J. (now C.J.). After pointing out that a 'dealer' in that order is a person carrying on the business of selling cloth or yarn or both, whether wholesale or retail, and whether or not in conjunction with any other business, Malik, J., went on to explain that "it is only the 'manufacturer' or the 'dealer' who has been made liable. The 'dealer' must be the person 'carrying on busi- ness of selling cloth'. The person punishable is the dealer. His munib or servant who could not be considered to be the 'dealer' was not punishable at all. To me it appears that the language of the order is significant and by implication the 'manufacturer' and the 'dealer' are made liable." Unless I were to hold that a person who looks after the business of a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the accused, Abdul Samad Khan, too, was liable to prosecution. The learned Sessions judge did not seem to attach any importance to the argument that the applicant was a mere servant, and, therefore, could not be held liable for contravening the provisions of Section 6 of Act No. I of 1939. From the remarks that he has made, it is quite obvious that the learned Sessions Judge treated him as a servant, because he refers to Mohammad Din "as his master to whom also blame attaches in this matter". It strikes me that the learned Sessions Judge makes no, distinction between a retail dealer and a salesman working under the control of a master. The conclusion, therefore, at which I have arrived is that it was not established in this case th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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