JUDGMENT 1. The Petitioners Goshta Behari Saha and Fakira Saha have been convicted of offences under secs. 53 and 61 of the Excise Act, i.e., of selling and possessing ganja without a license and have been each sentenced to pay a fine of Rs. 200 under each section. The first petitioner is a licensed vendor of exciseable articles and the second is a servant of the first petitioner. The rule was obtained on the following grounds (1) that the District Magistrate Mr. Foley who heard the Petitioners' appeal had, as Collector, directed their prosecution, (2) that Fakira as servant is not liable for the act of his employer, (3) that the Deputy Magistrate who tried the case should have issued summonses to the witnesses the Petitioners desired to call in their defense and (4) that the Petitioners are not guilty of offences under secs. 53 and 61 and that the first Petitioner Goshta Behari should have been convicted only of an offence under sec. 59 of the Act. 2. The first of these grounds clearly fails. The appeal was heard by Mr. Foley. The prosecution was ordered on the report of the Excise Sub-Inspector by Mr. Liddell. The second plea must prevail. The accused Fakira was only a servant of Goshta Behari. It was Goshta Behari who sold the ganja, received the money for it and ordered Fakira to deliver the ganja to the purchaser. Similarly, it was Goshta Behari, who was found in possession of the ganja. Fakira was in his employer's house at the time, but cannot be regarded as having been in possession of the ganja. The conviction and sentences of the Petitioner, Fakira, must therefore be set aside. 3. The third plea is of no force. The accused were bound to bring their own witnesses the case being a summons case. Further, this plea has no substance. The facts are not disputed. We have not been told how the Petitioners have been prejudiced or what evidence they wished to adduce was excluded. 4. The last ground is that the Petitioner Goshta Behari, being a licensed vendor of exciseable articles, secs. 53 and 61 of the Act have no application to him. These sections, it is said, apply only to persons other than licensed vendors. 4. The last ground is that the Petitioner Goshta Behari, being a licensed vendor of exciseable articles, secs. 53 and 61 of the Act have no application to him. These sections, it is said, apply only to persons other than licensed vendors. Goshta Behari was under his license bound to sell ganja only at his shop in Sarandi and not at Bolepur, where he sold it. He had a perfect right to be in possession of the quantity of the ganja found in his shop at Bolepur, and though in selling it there he contravened cl. 5 of his license, he broke no condition of his license by being in possession of it there. We consider this contention must prevail. Goshta Behari had no right to sell ganja at Bolepur but he was a licensed vendor and therefore did no more than contravene a condition of his license, for which be is liable to a fine of Rs. 50 under sec. 59 of the Excise Act; see Empress v. Nobokumar Pal ILR 6 cal. 621 (1881). In being in possession of 130 tollas of ganja at Sarandi, he broke no condition of his license and being a licensed-vendor has not committed an offence under sec. 61. We accordingly set aside the conviction and sentences passed on the Petitioners under secs. 53 and 61 of the Excise Act. The fines imposed on Fakira if paid will he returned to him. We convict the Petitioner Goshta Behari Saba of an offence under sec. 59, Act. VII B.C. of 1878, and direct that he do pay a fine of Rs. 50 or do undergo 15 days simple imprisonment in default. If the fines imposed on Goshta Behari have been already paid, then the balance of the fines after deducting the fine of Rs. 50, now imposed on him, will be returned to him.