JUDGMENT Sapru, J. - This is a revision against the order of the learned Sessions Judge of Bulandshahr affirming a conviction and sentence u/s 7 of the U.P. Sales of Motor Spirit Taxation Act of 1939 (Act No. 1 of 1939), by a Magistrate of the first class. The facts which have given rise to this application in revision may be stated shortly. 2. The Applicant, Abdul Samad Khan, is admittedly the servant of a rich merchant Haji Mohammad Ashfaq, who has his Head Office at Delhi. Haji Mohammad Ashfaq had a large petrol business, both at Bulandshahr and at Delhi. The applicant, Abdul Samad Khan was the salesman of his petrol shop at Bulandshahr. Haji Mohammad Ashfaq held a registration certificate in the name of Haji Mohammad Ashfaq and Co. as required by the U.P. Sales of Motor spirit Taxation Act of 1939 for carrying on the business of a retail dealer in respect of this commodity. The certificate was for a period of one year. It was to expire on the 31st of March, 1946. Soon of the expiry of the certificate on the 10th of April, 1946, Haji Mohammad Ashfaq died leaving behind him a son Mohammad Din, who thereafter became the sole proprietor of the Delhi and Bulandshahr business. The business which Haji Mohammad Ashfaq was carrying on in Bulandshahr did not stop after the expiry of the certificate. It went on as before with the result that on the report of an Excise Inspector, who visited the shop of Haji Mohammad Ashfaq and Co. at Bulandshahr on the 19th of May, 1946, a prosecution was started, under the orders of the Excise Magistrate, against the applicant, Abdul Samad Khan, who has been found to be a shop assistant getting a fixed salary in the business firm of Haji Mohammad Ashfaq and Co. 3. The learned Magistrate came to the conclusion that though after the death of Haji Mohammad Ashfaq his son Mohammad Din became the Manager of the petrol shop. the business in Bulandshahr was actually being carried on by the person on the spot, namely, Abdul Samad Khan, and that it was he who must therefore be held to have contravened the provisions of Section 7 of Act No. 1 of 1939. 4. Section 7 of Act No. 1 of 1939 prescribes a penalty for persons who contravenes the provisions of Section 6. 4. Section 7 of Act No. 1 of 1939 prescribes a penalty for persons who contravenes the provisions of Section 6. Section 6 of that Act lays down that no parson shall carry on business as a retail dealer in any distract without holding a registration certificate u/s 5. It is then clear that the person liable to punishment for contravention of the prohibition to carry on business without a registration certificate is the person who carries on business as a retail dealer. The question of importance in this case to which the Courts below have not applied their minds was whether Abdul Samad Khan was a retail dealer who could be said to be carrying on business within the meaning of Section 6 of Act No. 1 of 1939. The rules made under this Act impose certain duties upon retail dealers. Rule 2 defines "Manager" or 'Agent' for the purposes of the U.P. Sales of Motor Spirit Taxation Act of 1939 as a person expressly authorised in writing by a retail dealer to act as his manager or agent for all or any of the purposes of these rules and in respect of all or any place or places of business of the retail sale, such authority having been accepted in writing by such person and filed with the registering authority. There is nothing to indicate that Abdul Samad Khan is a manager or agent within the meaning of Section 2(b) of the Act. In point of fact he has been prosecuted as a retail dealer within the meaning of Rule 11 of the rules made under Act No. 1 of 1939. 5. For elucidating the point which has arisen in this case, I quote Rule 11, (i), (ii) and (iii); (1) Subject to the provisions of the next succeeding sub rules, if a retail dealer dies during the period of his registration certificate the person carrying on the business of such retail dealer shall be liable for the payment of the tax and shall be bound by the terms and conditions of the registration certificate in the same manner and to the same extent as if the certificate had been originally granted to him. (2) A person carrying on the business of a retail dealer after the latter's death shall, within a period of thirty days from the date of the death of such retail dealer, apply to the registering authority for the substitution, of his name in place of the name of the deceased retail dealer ond shall with his application submit to the registering authority the registration certificate granted to the deceased retail dealer. (3) On the expiry of thirty days from the death of the deceased retail dealer, the person carrying on his business shall be deemed to be a person carrying on business as a retail dealer without holding a registration certificate and shall be liable for the penalties provided in the Act: Provided that the registering authority may for reasons which it may consider sufficient condone any delay in the making of the application for the substitution of the name. It is urged that Abdul Samad Khan comes within the mischief of Sub-rule (3) of Rule 11 as he was the person carrying on business as a retail dealer without holding a registration certificate. 6. An examination of the scheme of the rules framed under the Act shows that in the rules there is a distinction between a retail dealer and a servant employed by him and that it is the former and not the latter who is answerable for contravening provisions of the Act and the rules made thereunder. It is further clear from the rules that a retail dealer can function in more than one district and that as laid down in Rule 2(c)(ii) in case a retail dealer applies for a registration certificate in respect of more than one district, the Excise Commissioner is the registering authority. Rule 4(2)(11) makes it clear that an application for registration certificate can be made by the retail dealer to the Excise Commissioner, if the retail dealer applies for a registration certificate in respect of more than one district. Rule 4(3) for example is quite explicit on the point that an applicant carrying on retail sales in more than one district can make a separate application to the Collector of each such district, or a single application to the Excise Commissioner. Rule 4(3) for example is quite explicit on the point that an applicant carrying on retail sales in more than one district can make a separate application to the Collector of each such district, or a single application to the Excise Commissioner. A perusal of Rules 10 to 15 will show that Act 1 of 1939 makes a distinction between a salesman, who is not dealer, and a dealer, who alone is deemed to carry on business. The real question in the case was as to who was the person who was carrying on the business of retail dealer in the firm Haji Mohammad Ashfaq & Co. after the death of Haji Mohammad Ashfaq. The findings of the Courts below are that the proprietor of the firm before 10th April, 1946, was Haji Mohammad Ashfaq and that thereafter the business of the Bulandshahr shop, for the non-registration of which as a shop carrying on the business of selling petrol, the applicant is being prosecuted, was under the control of his son Mohammad Din. Both the Courts below agree that it was not possible for the accused to get any petrol unless it was supplied to him by Mohammad Din. It is further clear that the license has now been renwed in the name of Mohammad Din. It is also an undeniable fact that the accused was liable to render accounts to the proprietor and was in fact rendering such accounts to him. Clearly it cannot be said, in view of these findings, that the accused was himself carrying on the retail business. The person who was carrying on the retail business was the son of Haji Mohammad Ashfaq, Mohammad Din, Reference may be made in this connection to two cases, on which reliance was placed by learned Counsel for the applicant. The first of these is a case, Lewis v. Graham 20 Q.B. Division 780, in which the questions of the meaning to be attached to the words "carry on business" was considered with reference to the employment of a clerk by a Solicitor at his office in the city of London. The first of these is a case, Lewis v. Graham 20 Q.B. Division 780, in which the questions of the meaning to be attached to the words "carry on business" was considered with reference to the employment of a clerk by a Solicitor at his office in the city of London. On the question whether the clerk could be said to be carrying on business, Lord Coleridge, Chief Justice, observed, that: In a certain sense the Defendant Was carrying on business, because he was employed in the City, and if the words "Carry on business" must be held to extend to every kind of employment the argument of his learned Counsel is wrong. But that is not a fair interpretation of the words. The business must be some business in which he has control, or acts as one of the partners engaged in carrying it on. A particular clerk or workman who is engaged about the business, but has no control over it whatever, cannot be said to the carrying on business in the City. That would be my opinion if the matter were new. But it is not new, There are two cases in the Court of Ex-chequer in which the questions were as to the jurisdiction of an inferior Court. It was contended in one of those cases that a clerk in the Admiralty, and in the other that a clerk in the Privy Council carried on business within the jurisdiction. In both cases the Court held that the clerk did not "carry on his business" for the purposes of the respective Acts within the jurisdiction, because he was a mere servant employed in a department of the State. Those cases would be directly in point except for the word "his" in the Acts on which they arose. But I think that word makes no difference, because the words "carry on business" must mean "carry on his business. 7. In a recent case of this Court, Harish Chandra Bagla Vs. Those cases would be directly in point except for the word "his" in the Acts on which they arose. But I think that word makes no difference, because the words "carry on business" must mean "carry on his business. 7. In a recent case of this Court, Harish Chandra Bagla Vs. Emperor, AIR 1945 All 90 the question of the meaning to be attached to the word 'dealer' in Clause 12 of the Cotton Cloth and Yarn (Control) Order, 1945, was considered by Malik, J. (now C.J.) After pointing out that "a 'dealer' in that order is 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" Malik J went on to explain that "it is only the 'manufacturer' or the 'dealer' who has been made liable. The 'dealer' must be the person 'carrying on business of selling cloth' The person punishable is the dealer. His Munib or servant who could not be considered to be the "dealer" was not punishable at all. To me it appears that the language of the order is significant and by implication the 'manufacturer' and the 'dealer' are made liable. 8. Unless I were to hold that a person who looks after the business of a shop as an assistant is a retail dealer, the present applicant could not be held to be guilty of the offence with which he was charged. The position is that his status was that of a servant, may be of a superior type, who was working under the control of his master, who was functioning from Delhi. His status was not that of a master He was working subject to the control of another person. This aspect of the case appears to have been completely overlooked by the Courts below. It was urged that the accused had not pleaded in his defence that he was a servant and as such was not, in law, guilty of contravening any of the provisions of Act No. 1 of 1939. This aspect of the case appears to have been completely overlooked by the Courts below. It was urged that the accused had not pleaded in his defence that he was a servant and as such was not, in law, guilty of contravening any of the provisions of Act No. 1 of 1939. In the written statement which was filed by the accused u/s 256 of the Code of Criminal Procedure it was made clear by him that one of his defences was that no action could be taken against him under Act No. 1 of 1939 as he was not a retail dealer himself, but only the servant of a retail dealer. The Courts below apparently attached no importance to that plea The learned Magistrate dismissed it with the observation that under Rule 11 he was the person carrying on business of such retail dealer as is mentioned under the rules and that he himself, therefore, should be deemed to have contravened the provisions of Section 6. In this he was in error. 9. Though the learned Sessions Judge came to the conclusion that after the death of Haji Mohammad Ashfaq, the petrol shop was being managed by his son, Mohammad Din, he nevertheless held that the accused, Abdul Samad Khan, too, was liable to prosecution. The learned Sessions Judge did not seem to attach any importance to the argument that the applicant was a mere servant. and, therefore, could not be held liable for contravening the provisions of Section 6 of Act No. 1 of 1939. From the remarks that he has made it is quite obvious that the learned Sessions Judge treated him as a servant, because he refers to Mohammad Din 'as his master to whom also blame attaches in this matter'. It strikes me that the learned Sessions Judge makes no distinction between a retail dealer and a salesman working under the control of a master. 10. The conclusion, therefore, at which I have arrived is that it was not established in this case that the applicant was a retail dealer. As a mere servant he could not be prosecuted for contravention of the provisions of Section 6 of Act No. 1 of 1939. The applicant is, therefore, not guilty of the offence with which he was charged. 11. As a mere servant he could not be prosecuted for contravention of the provisions of Section 6 of Act No. 1 of 1939. The applicant is, therefore, not guilty of the offence with which he was charged. 11. The result is that I set aside the sentence passed on him by the learned Magistrate and affirmed by the learned Sessions Judge and direct that the fine of Rs. 100 which was the sentence passed on him, if already paid, shall be refunded to him.