JUDGMENT Lodge, J. - This is a Reference under the provisions of sec. 438 of the Code of Criminal Procedure. Two persons, Ramswarup Agarwalla and Satya Narayan Agarwalla, were prosecuted for failing to comply with the provisions of sec. 11 of the Hoarding and Profiteering Prevention Ordinance, 1943. They were convicted and sentenced under sec. 13 (2) of that Ordinance, each to pay a fine of Rs. 50 and in default to undergo simple imprisonment for one week. The sentence was non-appealable. 2. The two convicted persons moved the Sessions Judge of Darjeeling and the Sessions Judge of Darjeeling made this Reference recommending that the convictions and sentences be set aside on the ground that there was nothing in the record to show that the accused persons were dealers as contemplated by sec. 2 (b) of the Ordinance in question. 3. The material facts may be stated very briefly. On May 22nd, 1945, two police officers went to the premises of Messrs. Sriram Thabarmall of Kalimpong and searched the premises suspecting that cloths and other articles were being boarded there. The two accused persons were apparently found on the premises. The police officers asked the accused persons to produce their price list and the accused failed to produce any price list. The police officers in the course of their search were unable to find any price list. On these allegations a charge against the accused Satyanarayan was framed that he, whilst serving as manager in the shop of Messrs. Sriram Thabarmall of Kalimpong, was found with several items of woollen cloth in the shop without any price list as required by Notification No. 1/2 (152)/44-CG (CS) dated Bombay, November 23rd, 1944. The charge against Ramswarup Agarwalla was that he, while serving as manager or sales-man without any price list as required by the Notification, committed an offence punishable under sec. 13 (2) of the Ordinance. The learned Magistrate found that the accused persons were on the premises, that no price list was exhibited as required by sec. 11 of the Ordinance and by the Notification No. 1/2 (152)/44-CG (CS). 4. The question is whether the accused per are dealers for the purposes of this section. 13 (2) of the Ordinance. The learned Magistrate found that the accused persons were on the premises, that no price list was exhibited as required by sec. 11 of the Ordinance and by the Notification No. 1/2 (152)/44-CG (CS). 4. The question is whether the accused per are dealers for the purposes of this section. Sec. 11 reads: The Controller-General may direct any dealer or producer to mark articles exposed or intended for with the sale prices or to exhibit on his premises a price list of articles held by him for sale, and further give directions as to the manner in which any such direction as aforesaid is to be carried out. 5. The Crown relied on the decision of a Division Bench of this Court in the case of Miss A. Heape v. Emperor 49 C. W. N. 130 (1944). In that case the convicted person sold an article at an excel price. It was argued that she was not a dealer as contemplated by the section, but this Court held that she was a dealer. It seems to me that the circumstances in that case were different. In that case the person was actually making a sale of the goods in question and was dealing with the goods and came within the definition of the section. But sec. 11 requires the dealer to exhibit on his premises a price list, and the offence with which the present accused charged was failure to exhibit on their premises a price list I am not satisfied that a mere man in a shop can be said to be a dealer competent to exhibit on his premises a price list. I no doubt that the owner of a shop or a manager in charge of a shop can rightly be described as a dealer for the purposes of this offence. I do not see how premises where a mere sales-man works can be described as his premises ; and I am satisfied that a mere sales-man who has no management or control of the shop is not a dealer for the purposes of this provision, whatever he may be with regard to the provisions regarding the sale of articles at excessive prices. In this view I agree with the learned Sessions Judge that the accused persons, if merely salesmen, cannot be convicted on the charge framed against them. 6. In this view I agree with the learned Sessions Judge that the accused persons, if merely salesmen, cannot be convicted on the charge framed against them. 6. It seems perfectly clear that the first of the two accused, Ramswarup Agarwalla, was a mere sales-man and therefore his conviction and sentence must be aside. 7. Whether the second accused Satyanarayan Agarwalla was a mere sales-man or not is not very clear. The learned Judge in his letter of Reference states that they are merely employees of the firm. The fact that they were merely employees does not solve the problem. An employee might have been in charge of the shop and therefore a dealer in the sense in which I have interpreted the phrase. 8. The evidence against Satyanarayan consists of the statement of the police officer to the effect that the accused persons are Munibs of the firm of Messrs. Sriram Thabarmall and the evidence of the second witness to the effect that the accused are the agents of Sriram Thabarmall. In my opinion the evidence on record is not sufficient satisfactorily to establish even that Satyanarayan was the manager in charge of the shop and therefore a dealer for the purposes of this case. If there had been a serious infringement of the law, I should have contemplated sending the case back for further enquiry so far as Satyanarayan is concerned. But as the learned Magistrate himself observes, the offence was not a serious one and no heavy sentence was justified. In the circumstances it would be unnecessary harassment to the accused persons to send the case back for further enquiry. In the result therefore I accept the Reference of the learned Sessions Judge. The convictions and sentences are set aside and the accused persons are acquitted. The lines, if paid, will be refunded.