JUDGMENT 1. The Petitioner has been convicted under sec. 53 of the Eastern Bengal and Assam Excise Act I (E. B. & A.) of 1910 and sentenced to pay a fine of Rs. 25 or in default to suffer simple imprisonment for two weeks. The charge against him is that he manufactured and sold an excisable article, namely, a mixture called Kameshur Modak which contains Bhang. At the trial he admitted having prepared and sold the mixture. He is a Kabiraj or medical practitioner and his case throughout has been that Kameshur Modak is a bond fide medicated article prepared by him for medicinal purposes. The defence is founded on sec. 72 of the Act which declares that " the foregoing provisions of this Act shall not apply to the import, manufacture, possession, supply or sale of any bond fide medicated article for medicinal purposes by medical practitioners chemists, druggists, apothecaries or keepers of dispensaries, except in so far as the Local Government may by notification so direct." The bona fides of the Petitioner and his preparation are not disputed and in view of the terms of sec. 72 his defence appears to us to be unanswerable. In the explanation of the District Magistrate reference is made to a notification of the Local Government (65, dated 10th November 1911) in the course of which certain powers conferred on the Local Government by sec. 36 of the Act are delegated to the Board of Revenue under a power of delegation conferred by an earlier section. But no rule made by the Board as delegated under sec. 36 can affect the operation of sec. 72. The power of the Local Government to restrict the operation of the section has not been delegated to the Board and, so far as we are aware, has not been exercised in regard to preparation containing Bhang. The only notification issued under sec. 72, which appears in the Excise Hand Book is a notification issued by the Local Government restricting the operation of the section in regard to cocaine and its analogues. As we understand, the Rule of the Board prescribing a fee of one rupee per annum, " for the possession by a medical practitioner of Bhang for medical purposes " purports to be made under sec. 36 (Rule 165 of Notification No. 836 Ex., dated the 14th November 1911). As we understand, the Rule of the Board prescribing a fee of one rupee per annum, " for the possession by a medical practitioner of Bhang for medical purposes " purports to be made under sec. 36 (Rule 165 of Notification No. 836 Ex., dated the 14th November 1911). Another rule made by the Board under sec. 6 purports to authorise " licensed chemists" to sell Bhang to any person holding a "druggist's permit" in quantities not exceeding two seers (Rule 2 of Notification No. 835 Ex., dated the 14th November 1911). It is unnecessary for us, however, to consider the precise effect of these rules and we expressly abstain from pronouncing any opinion on the question of their application to the possession of Bhang by persons such as medical practitioners and others within the description in sec. 72 for the purpose of the manufacture of bond fide medicated articles for medicinal purposes. It is true that the Petitioner must have been in possession of the Bhang which is an ingredient in his preparation and that he has not paid the fee for such possession prescribed by the Board. He has not however been charged with the illegal possession of Bhang, but with the manufacture and sale of a medicated article, the bond fides of which, as we have said, is not disputed. If the charge had been illegal possession, a different defence might have been made, and it might have been necessary to consider the mode in which possession was obtained with reference to cl. (c) of Rule 37 made by the Local Government under sec. 73 (Notification No. 65 R. D.,-dated the 10th November 1911), as we believe Bhang is easily prepared from the leaves and capsules or leaves and stalks of the hemp plant (see Wilson's Glossary of Indian Terms). For the purpose of this Rule, it is sufficient to say that in regard to the manufacture and sale of Kameshur Modak, the Petitioner is protected by sec. 72. The language of the section is wide enough to take any case to which it applies without restriction out of the Act. In any such case, the provisions which precede it, including apparently not only the penal clauses but the definition clause, are inapplicable. On this ground, we make the Rule absolute. The fine imposed upon the Petitioner, if paid, must be refunded.