JUDGMENT Walford, J. - This is a revision against the order of the learned Additional Sessions Judge, Kheri, who, in appeal, upheld an order of conviction and sentence of fine passed by M . Raj Bihadur LU, Sub-Divisional Magistrate, Lakhimpur, The three applicants Kunj Behari Lal, Gopi Nath and Prem Narain are brothers and carry on cloth business in Lakhimpur town, Kunj Behari Lal and Gopi Nath are described as proprietors of a cloth shop and Prem Narain has been described as their salesman. The prosecution case was that on the 30th August, 1944, one Faqira who has been examined as P. W. 2, accompanied by one Miyan Jan who has also been examined in the case as a witness went to the shop of Kunj B;hari and Gopi Nath and purchased a dhoti of unique yards length for Rs. 5-9-0. Faqira also demanded a cash memo for the price he had paid but it was refused. It is admitted by the prosecution that Kunj Behari Lal and Gopi Nath, who are registered as licensed dealers, were absent from the shop at the time of the transaction. Faqira was served by Prem Narain, the salesman The controlled price of the dhoti which was printed on it was Rs. 4-9 0. It is allege. d that Faqira after leaving the shop mentioned the price, he had to pay for the dhoti, and the fact that he was refused a receipt, to some persons in the bazar and while this talk was going on, Ganga Bishun, the Head Constable in the District Investigation Staff, accompanied by some other constables, happened to be passing by and overheard the conversation between Faqira and others in respect of the purchase of the dhoti and the refusal of the shop-keeper in giving a receipt for the price charged. The Head Constable took up the matter by submitting a report to the Superintendent of police who in turn ordered the Station Officer, Kotwali Likhimpur to register the case and proceed under the Defence of India Rules. The Station Officer after investigation and obtaining necessary sanction sent up the three applicants for enquiry and trial. 2. The factum of the sale is not denied by Prem Narain. His defence, however, is that he had sold the dhoti in question to Faqira at the controlled price, namely, Rs. 4-9-0. The Station Officer after investigation and obtaining necessary sanction sent up the three applicants for enquiry and trial. 2. The factum of the sale is not denied by Prem Narain. His defence, however, is that he had sold the dhoti in question to Faqira at the controlled price, namely, Rs. 4-9-0. He also detuned that Fiqira had demanded a cash memo for the price he had paid for the dhoti. His story is that after purchasing the dhoti, Faqira went away but returned to the shop some 30 minutes later and asked Prem Narain lo take back his dhoti and return money as he was not satisfied with his purchase. Prem Narain refused to cancel the sale whereupon an altercation ensued with exchange of hot words on both sides. It is alleged on behalf of Prem Narain that in consequence of this alteration, Faqira lodged a false complaint against him. 3. The learned Magistrate who tried the case and the learned Additional Sessions Judge in appeal have examined the evidence and have held that Prem Narain had, in fact, charged Rs. 5-9-0 for the dhoti and he also refused a cash memo on demand. I see no reason to interfere with this finding of fact. 4. The defence of the other two applicants, namely, Kunj Behari Lal and Gopi Nath is that they were absent from their shop at the time of the transaction which fact is admitted by the prosecution. It is, therefore, extended on their behalf that as they had no knowledge as to what had transpired and ss the prosecution had not proved that the sale at a price higher than the controlled rate had been affected at their instigation or approval, they cannot be held liable for the action of third person. It is strongly contended on their behalf that a principal or a master cannot be visited with punishment vicariously for the criminal act of an agent or servant. It is true that according to the general law no person can be held guilty of an offence in which criminal intention or mens rea is an element necessary for saddling a wrong door with criminal responsibility unless such mens rea is proved. It is true that according to the general law no person can be held guilty of an offence in which criminal intention or mens rea is an element necessary for saddling a wrong door with criminal responsibility unless such mens rea is proved. This principle is based upon the maxim auction facit reutn nisi mens sit rea It is generally accepted law that a master or a principal cannot ordinarily be held responsible for the criminal acts of a servant or an agent be- cause in an offence in which the condition of the mind is a necessary element this condition of the mind cannot be imputed to the master or the principal. In Civil Law, however, a mister or a principle U is liable for damages for an injury caused to another by the negligence of the servant while acting within the scope of his authority or in the course of his employment. 5. It is, however, not unknown to law and instances are not wanting either in England or in this country that in special cases vicarious liability has been imposed on that master or principals have been held criminally responsible for the acts of their servants or agents for offences especially created by statute, where a particular intent of the state of mind is not the essence of the offence. In Coppen v. Moore (1898) 2 QBD 306, Lord Russel in considering the general principle of criminal law based upon the maxim actus non facit reum nisi mens sit rea observed:- There is no doubt that this is the general rule, but it is subject to exceptions, and the question here is whether the present case falls within the general rule or with/n the exceptions.... But by far the greater number of exceptions engrafted upon the general rule are cases in which it has been decided that by various statutes criminal responsibility has been put upon masters for the acts of their servants.... The decisions in these and in other like cases were based upon the construction of the statute in question. 6. It is now to be seen whether this test can be applied to Sub-clause 2, of clause 12 of the Government of India Cotton Cloth and Yarn (Control) Order, 1943 which was made under rule 81 (2) of the Defence of India Rules. 6. It is now to be seen whether this test can be applied to Sub-clause 2, of clause 12 of the Government of India Cotton Cloth and Yarn (Control) Order, 1943 which was made under rule 81 (2) of the Defence of India Rules. Clause 12 of this order reads as follows:- No Manufacturer or dealer shall sell or offer to sell any cloth or yarn at a price higher than the maximum price specified in this behalf under clause 10. 7. A dealer has been defined in the said Order as follows:- A dealer means 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. 8. It will be observed that under clause 12 a manufacturer or dealer has been made liable for a sale of cloth in contravention of the Order and not a person other than the dealer who may have effected the sale. It cannot be gainsaid that the sale was by or on behalf of the dealer in the present case and it therefore follows that the dealer whether absent or present would be held responsible for the sale even though the actual transaction was effected in his absence by a servant whom he I had put in charge of the shop. Were it not so, the | entire scheme of the Control Order would be easily frustrated by dishonest dealers by putting their servants in charge of their shops to carry on the actual sale and thus render themselves immune from the responsibility which has been cast upon them by the Cotton "Cloth and Yarn (Control) Order. I have, upon the true construction of the said Order, no doubt in my mind that the dealers and manufacturers were intended to be made criminally responsible for tale of cloth at a price higher than the controlled rate whether the sales were effected by themselves or through their servants. 9. Tam amply supported in the view, I take, by a large number of cases decided in England and in this country. I may cite a few. In Houghton v. Mundyt (1311)103 L T 60 a grocer was held criminally liable for sale of certain articles by his servants without his knowledge in contravention of Section 6 of Sale of Food, and Drugs Act, 1875. I may cite a few. In Houghton v. Mundyt (1311)103 L T 60 a grocer was held criminally liable for sale of certain articles by his servants without his knowledge in contravention of Section 6 of Sale of Food, and Drugs Act, 1875. The facts of the case were that Mundy, the grocer had made up for-his own use a half-pound packet consisting of a mixture of butter and margarine. The packet was inadvertently left upon the counter while Mundy went to attend to a customer in an- other part of the shop, But it was not pleased there for the purpose of sale. Mundy's assistant then came in, and immediately afterwards a man came in and asked for half a pound of salt butter. The assistant, finding the half-packet lying on the counter ready-made, thought it to be the article asked for by the customer and sold the same. In selling the mixture of butter and margarine as salt butter, he was acting without the authority and contrary to the express instructions of the respondent. Upon these facts Mundy was prosecuted and ultimately convicted. The language of Section 6 of Sale of Food and Drugs Act, 1875, under which Mundy was convicted is as follows:- No person shall sell to the prejudice "of the purchaser any article of food or any drug which is not of the nature, substance and quality of the article demanded by such purchaser, under a penalty not exceeding 20 pounds. 10. It was argued on behalf of Mundy that he could not be held liable as the sale had been made by his assistant inadvertently and against his express instructions. Lord Alverstone, C.J., held ; Having regard, to the usefulness of the Sale of Food and Drugs Act, I think it is most important that we should not throw any doubt upon the decision to the effect that want of guilty knowledge is no defence to a prosecution of this kind, and that if a servant acting within the scope of his authority commits an infringement of the Act the master is responsible. 11. In Armitaga Limited v. Niclielson (1913) 10PLT 993 a case u/s 53, Bradford Corporation Act, 1910, Armitaga Limited were the owners and occupier of a dye-house which had a furnace and chimney appertaining thereto. They were prosecuted for the negligent stoking of their stokers and convicted. 11. In Armitaga Limited v. Niclielson (1913) 10PLT 993 a case u/s 53, Bradford Corporation Act, 1910, Armitaga Limited were the owners and occupier of a dye-house which had a furnace and chimney appertaining thereto. They were prosecuted for the negligent stoking of their stokers and convicted. Section 53 read as follows:- If any person uses or suffers to be used any such furnace which shall not be constructed upon the principle of consuming and so as to consume or burn its own smoke;, or if any person using or permitting to be used, any furnace so constructed shall, in the event of smoke arising therefrom not being effectually consumed or burned fail to show that such furnace has not been "negligently used, he shall if he is the owner or occupier of the premises or a foreman or other persons employed by such owner or occupier, be liable to penalty 12. Ridley, J. relying on that language held that it was not possible to exclude the owner from the liability. Avery. J. while agreeing with (hat decision went on to hold that whenever a special Act has lo be construed, it is always a question upon the true construction of the statute whether the master is intended to be made criminally responsible for aids done by his servants in contravention of the Act, where such acts are done within the scope or in the course of their employment. 13. In Mullins v. Collins 1874 (19) QBD 292 a licensed victualler was convicted of an . offence u/s 16 of the Licensing Act of 1872 for supplying liquor to a constable on duty although this was done by his servant without the knowledge of the master and similar was the case in Bond v. Evans 21 Q B D 249 in which a licensed victualler was convicted of an offence against Section 17 of the Licensing Act were gaming had been allowed in the licensed premises by the servant in charge of the premises although without the knowledge of his master. 14. Cases in India have al=o arisen in which vicarious liability for criminal acts were considered and decided. In Queen Empress v. Tayab AHS (1900) 24 Bom. 14. Cases in India have al=o arisen in which vicarious liability for criminal acts were considered and decided. In Queen Empress v. Tayab AHS (1900) 24 Bom. 423 the accused kept a shop under a license granted to him for the sale of arms, ammunition and military stores and was convicted for sale by his manager of military stores though without the knowledge of the accused u/s 22 of the Arms Act. Section 22 provides : Whoever knowingly purchases any arms, ammunition or military stores from any person not licensed or authorised under the proviso to Section 5 to sell the same; or delivers any arms, ammunition or military stores into the possession of any person without previously ascertaining that such person is legally authorised to possess the same, shall be punished with imprisonment for a term which may extend to six months or with fine which may extend to Rs. 500, or with both. 15. The defence in that case, as it is in the 4jreseTlt case, was that the goods were sold without his knowledge and consent and that he was not criminally liable for the act of his servant. Persons, J., after considering the English authorities, held:- It is not a question of intention, or mens rea o of knowledge; it is the delivery which the Act makes penal and the delivery by the manager is clearly in this case a delivery by the licensee." The learned Judge further held:- Whatever a servant does in the course of his employment with which he is entrusted and as a part of it is the master's act. 16. It will be observed that this authority is on all fours with the present case. In K.E. v. Babu Lai (1911)9 ALJ 288 a Division Bench of the Allahabad "High Court held that- where the servant of a licensed vender of opium, in the course of his employment as such servant, sold opium to a person under the age of 14 years, the licensed vendor also was liable u/s 9, Opium Act, even though he might not have been aware of the sale. 17. 17. It will be seen from the above citation of the authorities that it is well-settled law that if an act is prohibited without any qualifications the acts of the servant acting within the scope of his authority and the course of the business in which \ he is employed has been held to be the acts of the i master and the employers cannot be board to say i that a particular act was done without their . i knowledge. 18. I hold that Kunj Behari/La! and Gopi Nath, the j applicants have been rightly convicted under clauses 12 and 6 of the Government of India Cotton Cloth and Yarn (Control) Order, 1943. 19. The question, however, remains whether in view of the language of the Order in question Prem Narain can be held guilty for the style of cloth as he was not the dealer. To my mind, he cannot escape responsibility inasmuch as he abetted the offence under clause 12 and clause 6 of the said Order and lessen reason why he too should not be held guilty of tha offence. The application is dismissed.