JUDGMENT D.N. Roy, J. - This revision is by Pancham Lal, who has been convicted under Rule 25 of the U.P. Sugar Factories Control Rules 1938 framed u/s 30 of the U.P. Sugar Factories Control Act, 1938 for contravention of Rule 19(6) and Rule 19(8) of the rules and sentenced to a fine of Rs. 51/-, or in default to undergo R.I. for one month. 2. The applicant was incharge of the Dhaneta cane purchasing centre of the H.R. Sugar Factory Ltd., Bareilly. On 1st April, 1953 a surprise inspection was made of that centre by Sri P.P. Malviya, the Sugarcane Inspector U.P. He found the weighbridge on balance position giving different readings ranging from 4 seers to I mound and 16 seer. The lever was not properly sealed and looked as required under the rules. It was loosely screwed, and the screw and iron cap could be taken out by hand. The prosecution therefore contended that the weighbridge was exposed to tampering and manipulation and the acts complained of were in breath of Rule 19(6) and Rule 19(8) of the Rules. 3. The breach was noted by the cane Inspector in his notes of inspection and a copy was forwarded to this ''occupier" H.R. Sugar Factory, Bareilly in terms of Rule 25(4) of the rules calling upon the "occupier" to show cause why prosecution should not be launched for these irregularities. The Sugar Factory sent a reply to the effect that there was nothing wrong in the balance and that it was corrected and adjusted whenever report was received of its having gone out of order. On receipt of that reply the sugarcane Inspector submitted a report to the cane Controller saying that the explanation submitted by the factory was vague and evasive and he suggested that a prosecution be launched. The matter was finally brought to court upon a complaint that was made presumably in accordance with the rules. 4. On receipt of that reply the sugarcane Inspector submitted a report to the cane Controller saying that the explanation submitted by the factory was vague and evasive and he suggested that a prosecution be launched. The matter was finally brought to court upon a complaint that was made presumably in accordance with the rules. 4. Rule 19(6) of the rules inter alia provides that no scales or weights shall be used, kept or possessed for the weighment of cane by, or on behalf of, an occupier or manager or a purchasing agent-- (i) which are incorrect: provided that a weighbridge shall not be deemed to be incorrect which weighs correct to within two percent of the correct weight of the consignment actually being weighed, and cannot be adjusted more accurately, or (ii) the scale arms of which are not clearly marked on both sides wherever possible and are either not accessible to the vendors of cane and their authorized agents or are not legible to persons standing near the carts which are being weighed, or (iii) which have been disapproved by an Inspector provided that the Inspector shall not disapprove any scales or weights which comply with the rules unless after due warning a weighbridge is not adjusted and unless it is persistently found to be incorrect. 5. Rule 19(8) of the rules provides that part of the mechanism of a weight bridge by which its adjustment is controlled shall, wherever possible, be kept suitably sealed or locked. 6. The primary responsibility for the observance of these rules rests on the "occupier", the "manager", or the "purchasing agent". In the present case the notice that was issued under Rule 25(4) of the rules was to the "occupier" of the sugar factory. (sic) enough the occupier doss not seem to have been prosecuted in the case and the prosecution was launched against the applicant who is a clerk of the sugar factory and was incharge of the Dhaneta cane purchasing centre. Another person was prosecuted jointly with the applicant. He was one Mukut Behari Lal. He was proceeded against in his capacity as a "cane manager" or "cane controller" at the centre. He was, however, acquitted on the ground that there was no evidence to show that he was the "cane manager" or the "cane controller" of that centre. 7. Another person was prosecuted jointly with the applicant. He was one Mukut Behari Lal. He was proceeded against in his capacity as a "cane manager" or "cane controller" at the centre. He was, however, acquitted on the ground that there was no evidence to show that he was the "cane manager" or the "cane controller" of that centre. 7. The first point which has been urged on behalf of the applicant is that having regard to Rule 25 of the rules the applicant could not have been proceeded against and could not have been convicted. Rule 25 is the rule which provides for penalty to be imposed against any person contravening any of the provisions of the rules, the penalty being a fine which may extend to Rs. 750/-. 8. Rule 25(2) of the rules says that where an occupier or manager or a purchasing agent is charged with an offence against these rules, he shall be entitled, subject to the discretion of the Court, upon complaint duly made by him, to have any other person whom he charges as the actual offender, brought before the Court at the time appointed for hearing the charge; the trial of the case shall thereupon proceed as if such other person were also an accused person; and if, after the commission of the offence has been proved the occupier or manager or the purchasing agent, as the case may be, proves to the satisfaction of the Court-- (a) that he has used due diligence to enforce the execution of these rules, and (b) that the said person committed the offence in question without his knowledge, consent or connivance, that other person shall be convicted of the offence and shall be liable to the like fine as if he were the occupier or manager or the purchasing agent, as the case may be, and the occupier or manager shall be discharged from all liability in respect thereof under these rules. 9. It has been argued on behalf of the applicant that since the offence complained of by the cane Inspector in his notice Under Rule 25(4) of the rules was against the "occupier" of the factory, the applicant, who is only a servant of the factory could not have been proceeded against since the provisions of Rule 25(2) of the rules quoted above were not complied with. It is not pretended that in the present case the provisions of Rule 25(2) were observed. The learned Counsel for the State on the other hand relies upon Rule 25(3) of the rules in support of his submission that the prosecution launched against the applicant was perfectly justified in the circumstances of the case. 10. Rule 25(3) of the rules says that when it is made to appear to the satisfaction of the Inspector at any time prior to the initiation of a prosecution: (a) that an "occupier" or "manager" or a "purchasing agent" has used all due diligence to enforce the execution of these rules, and (b) that the offence has been committed without the knowledge, consent or connivance of the occupier or manager or the purchasing agent, as the case may be, or in contravention of his orders, 11. The Inspector shall proceed against the person whom he believes to be the actual offender without first proceeding against the occupier or manager or the purchasing agent and such person shall, if found guilty, be liable, to get the punishment to which the occupier or manager or the purchasing agent would otherwise have been liable. 12. Under Rule 25(3) it was open to the Inspector to proceed against the applicant, provided the Inspector had the satisfaction at any time prior to the initiation of a prosecution, that the occupier has used all due diligence to enforce the execution of these rules and that the offence had been actually committed without the knowledge, consent or connivance of the occupier or in contravention of his orders. 13. In the present case neither the notice Ex. P1, which was issued to the "occupier" of the factory under Rule 25(4), nor the reply Ex. P-2 sent by the factory to the cane Inspector, nor the report Ex. P-3 submitted by the cane Inspector to the cane Controller, nor the complaint itself made any mention of the fact that the cane Inspector had the satisfaction at any time prior to the initiation of the prosecution, that it was the applicant who was at fault and that the occupier had used all due diligence to enforce the execution of the rules and that the offence had been committed without the knowledge, consent or connivance of the occupier. Having regard to the facts and circumstances of the present case it was Rule 25(2) of the rules which should have been adopted by the prosecution and not Rule 25 (3) of the rules. Obviously therefore, the prosecution of the applicant was defective in law and the penalty imposed cannot be justified, more so, because Rule 25 only says that the penalty shall be a penalty of fine which may extend to Rs. 750/-. Section 67 of the IPC lays down that if the offence be punishable with fine only, the imprisonment which the court imposes in default of payment of the fine shall be simple. In the present case the learned Magistrate directed that the imprisonment in default of payment shall be rigorous. This was clearly an error. Under the circumstances the conviction and the sentence of the applicant cannot be upheld. 14. I allow the application in revision, set aside the conviction and sentence of the applicant and direct that the fine, if paid, shall be refunded to him.