ORDER Walsh, J. - Two excise licensees, who are partners in a country liquor shop license, have been convicted u/s 64(c) of the U.P. Excise Act, 1910, of committing a breach of the conditions of the license by selling liquor out of the prescribed hours and also by selling adulterated liquor. One of the partners, Tika Ram, was present at the shop when these offences were detected. It is admitted that Jwala Prasad, the other licensee, was not present and there is no suggestion that he knew anything about the irregular sales. The Deputy Magistrate has convicted Jwala Prasad on the strength of the ruling of the Hon'ble High Court in Babu Lal v. Emperor 14 Ind. Cas. 666 : 34 A. 319 : 9 A.L.J. 288: 13 CrI.L.J. 282. It has been argued before me that that ruling establishes only the liability of a master for the act of his servant, and that it does not follow that one partner is liable for the acts of the other partner. I do not accept this contention. It seems to me that one partner must he held to be liable for the acts of the other partner. The second point, however, urged before me in revision appears to be valid. The important point in the ruling quoted, which followed the case of Queen-Empress v. Tyab Ali 34 B. 423 : 2 Bom. L.R. 52 : 12 Ind. Dec. 815, was that in order to establish the offence under the section of the Opium Act it was not necessary to prove intention, mens rea or knowledge and that the mere act constituted the offence. In the present case, Section 64(c) of the U.P. Excise Act makes it an offence if any one, being the holder of a licence, wilfully does or omits to do anything in breach of any of the conditions of the license. The use of the word "wilfully" appears to me to make it clear that in order to establish this offence it is necessary to prove intention or knowledge, and on the facts found by the Deputy Magistrate there is no such proof against Jwala Prasad. I, therefore, forward the record for the orders of the I Hon'ble High Court with the recommendation that the conviction of Jwala Prasad be set aside. ORDER 2. I do not agree with the District Magistrate. I, therefore, forward the record for the orders of the I Hon'ble High Court with the recommendation that the conviction of Jwala Prasad be set aside. ORDER 2. I do not agree with the District Magistrate. Mens rea has nothing to do with it. It is quite true that the section requires a wilful breach of the condition. A man may accidentally commit a breach. For example, if a man's watch was five minutes slow and he sold liquor at two minutes to eight by his own time, and it turned out to be two minutes past eight by the right time, that would not be a wilful breach. But a sale is a sale, and I have not the slightest doubt that the servant intended to sell the liquor and to take the money for it, and if he pocketed the money and refused to hand it over to his master and said that it was an accidental sale and not a wilful sale, and, therefore, the money did not belong to the master but to the servant, the master would have been very angry. The real test, so far as agency is concerned, is not the nature of the act but the nature of the business. The nature of the act is the test which decides the criminality. If the sale is wilful or the breach of the license is wilful, then the servant has committed an offense. But the question still remains whether his master is liable, and in all these quasi civil transactions, which are really questions of contract, the view has always been held that the Legislature intended that the maxim making the superior answerable should apply to sales which are carried through in breach of the conditions of the license by a man whom the master has put in the shop for the purpose of selling on his behalf and for his profit, and, therefore, if the man who actually took the money and transferred the liquor to the purchaser had been a servant, Jwala would have been answerable as his master. The law of partnership is merely a branch of the law of agency, just like the law of master and servant, and for this purpose two partners stand to one another in the same relation as master and servant. This was a wilful breach of the license. The law of partnership is merely a branch of the law of agency, just like the law of master and servant, and for this purpose two partners stand to one another in the same relation as master and servant. This was a wilful breach of the license. It was committed by Tika Ram as agent for Jwala, the other partner, and in my opinion that makes Jwala equally liable, and the Magistrate was right I see no reason to interfere and I direct the record to be returned to the District Magistrate. I may add that I agree with both the cases which have been cited, namely Queen-Empress v. Tyab Ali 34 B. 423 : 2 Bom. L.R. 52 : 12 Ind. Dec. 815 and Babu Lal v. Emperor 14 Ind. Cas. 666 : 34 A. 319 : 9 A.L.J. 288 : 13 Cri. L.J. 282. It is hard on Jwala if he was on bad terms with Tika Ram and objected to this class of illicit dealing; but if he can prove that, he can press for the recovery of his fine from. Tika Ram, I think, in the taking of the partnership accounts Let the record be returned.