JUDGMENT : Narasimham, C.J. - This is a revision against the appellate judgment of the Sessions Judge of Sambalpur maintaining the conviction of the Petitioner u/s 47(a) of the Bihar and Orissa Excise Act and the sentence of fine of (sic) passed by a Magistrate, First Class, of Sambalpur. 2. The Petitioner was a licensed Excise vendor of a ganja shop in village Belpaher (P.S. Brajarajnagar) in Sambalpur district. His shop was searched by the Inspector, Excise (p.w. 3) on 25-2-1961 with the assistance of the Excise staff and 14 seers and 74 tolas of non-duty paid ganja and 53 tolas of duty paid ganja in excess of the shop account were seized. Opium weighing 5 tolas kept in a packet inside the shop was also recovered. There was no permit for stocking of the opium. At the time of the seizure the Petitioner was not in the shop but his two salesmen namely Radha Prosad and Ram Chandra Prosad were present. 3. The recovery of the aforesaid articles was not challenged and the only point of law raised by Mr. Murty on behalf of the Petitioner is that the owner?s vicarious liability for the unauthorised possession of the contraband goods by his salesmen as fixed in Section 5g of the Bihar and Orissa Excise Act, should not be applied to the present case. Section 59 of the said Act flays that if an offence u/s 47 of the Bihar and Orissa Excise Act is "committed by any person in the employ and acting on behalf of the holder of a licence granted under this Act such holder shall also be punishable as if he had himself committed the offence, unless he establishes that an due and reasonable predications were exercised by him to prevent the commission of such offence". 4. For the purpose of applying Section 59 against the Petitioner it is undoubtedly the duty of the prosecution to establish in the first instance-(1) that an offence u/s 47 of the Bihar and Orissa Excise Act was committed and (2) that it was committed by a person in the employ and acting on behalf of the Petitioner. Once these ingredients are established by the prosecution, the burden would shift on the Petitioner to establish that "all due and reasonable precautions were exercised by him to prevent the commission of the offence". Once these ingredients are established by the prosecution, the burden would shift on the Petitioner to establish that "all due and reasonable precautions were exercised by him to prevent the commission of the offence". Here, on the unchallenged facts it is clear that the two salesmen of the Petitioner were guilty of an offence u/s 47 of the Bihar and Orissa Excise Act inasmuch as the seized excisable articles were found in their unauthorised possession. That they were the salesmen of the Petitioner is not challenged, but it was urged that while remaining in possession of the goods in the shop they were not "acting on behalf of the Petitioner". This argument does not appeal to me. Being the salesmen of the Petitioner they were authorized to sell Hcensed goods to customers, and hence while sitting in the shop of the Petitioner they must be held to have been acting on behalf of the Petitioner. 5. It was then urged that the Petitioner owns 4 or 5 excise shops at different places, that as admitted by him he used to visit the shop in question only occasionally and that the management of the same was left entirely in the hands of the two salesmen. This, however, will not suffice to exonerate the Petitioner. P.w. 1 who is the Secretary of the local Panchayat stated that he had actually seen the Petitioner in the ganja shop on the previous day. The law casts on the Petitioner the duty of taking reasonable precautions with a view to prevent his salesmen from possessing unauthorisedly excisable goods and the Petitioner must affirmatively establish that he took such precautions. Merely by saying that he has several licensed shops, that he is a busy person or that he visited this particular shop on the previous day it cannot be said that he discharged the burden cast on him by Section 59. The evidence of P.W. 1 further shows that the goods were kept for regular sale. Thus he noticed some opium sticking to the pan of the scale. The box in which opium was kept was found at the counter of the shop. Inside the room nine tolas of ganja were found in a gunny bag and some bags of ganja were also found there. Thus he noticed some opium sticking to the pan of the scale. The box in which opium was kept was found at the counter of the shop. Inside the room nine tolas of ganja were found in a gunny bag and some bags of ganja were also found there. There was also an almirah in the room which on being opened was found to contain an yellow cloth bag in which were found 53 tolas of ganja and 110 tolas of ganja kept in paper packets. There was also a tin box containing some non-duty paid ganja. It is difficult to believe that so much of contraband goods could have been collected in the course of one day, namely, between 24-2-1961, the date of the presence of the Petitioner at his shop and the date of seizure which took place the very next day. In any case, as the Petitioner has led absolutely no evidence nor has he brought out any material from cross-examination of the prosecution witnesses to show that he took all reasonable precautions as required by Section 59, his vicarious liability must be held to have been established. 6. Mr. Murty relied on two decisions which in my opinion do not support his case. In AIR 1935 Pat 17, where the servants of a licensed vendor were found to be unauthorisedly transporting illicit liquor from one place to another, it was held that they were not acting within the scope of the employment of their master at the time of such transport and accordingly the master was not vicariously liable. Here, however, as stated already, the contraband goods were seized when the salesmen were sitting in the shop for the purpose of selling goods. The possession of the goods was not only with the salesmen when they were in the employ of their master viz. the Petitioner, but they were also acting within the scope of their employment viz. selling goods to customers. Similarly, AIR 1938 Bom 477 is distinguishable. There, there was evidence to show that the master used to visit his shop every day, until he fell ill making it impossible for him to inspect his shop. A surprise raid was made on the shop just before he fell ill and it was found that that no offence under the Bombay Abkari Act had been committed. There, there was evidence to show that the master used to visit his shop every day, until he fell ill making it impossible for him to inspect his shop. A surprise raid was made on the shop just before he fell ill and it was found that that no offence under the Bombay Abkari Act had been committed. But during the course of his illness when a subsequent raid was made, it was found that his employees had committed an offence. In view of the usual precaution taken by the master and the fact that when he was not ill, no offence under the Bombay Abkari Act was committed, the learned Judges held that on the facts of that case, the master must be held to have taken all reasonable precautions to prevent the commission of the offence. Here, however, there is no evidence of such conduct on the part of the Petitioner. If the Excise party had raided the ganja shop of the Petitioner on 24-2-1961 and had not found the excisable articles in the unauthorised possession of the salesmen, and, if during the second raid on the 25th February such goods had been found, the Petitioner would have been justified in saying that during his absence his salesmen had smuggled the goods surreptitiously. But there is no evidence to support such a view nor is it clear that during his visits the Petitioner used to make a careful check of the shop with a view (sic) see that no unauthorised goods were kept there by his servants. 7. Under these circumstances I am satisfied that the Petitioner was rightly convicted and the sentence is not excessive considering the large quantity of excisable articles recovered. The conviction and sentence are maintained and the revision petition is dismissed. Final Result : Dismissed