JUDGMENT B. D. Gupta, J. - The respondent Daya Shanker along with, his father Jwaia Prasad was tried by a First Class Magistrate of Fatehgarh in respect of a complaint filed by an Assistant Collector of Central Excise that they had committed offences under Section 9 of the Central Excises and Salt Act, 1944, here-matter referred to as the Act. The learned Magistrate found that they had Doth committed offences under clauses (a) and (b) of Section 9 of the aforesaid Act, and accordingly sentenced them to pay a fine of Rs. 2000/- each. Both appealed against the aforesaid order. The learned Sessions Judge, whilst maintaining the conviction of Jwala Prasad, and the sentence awarded to him set aside the conviction and sentence of the respondent Daya Shanker and acquitted him of the offence for which he had been tried. Jwala Prasad the father, appears to have submitted to the judgment of the learned Sessions Judge, but the State Government has filed this appeal against the acquittal of the respondent Daya Shanker. 2. The facts of the case may now be briefly summarised. Firm Devi Prasad Jwala Prasad carried on business at Kannauj. The proprietor of the firm was Jwala Prasad and it was a licensee for maintaining a bonded ware-house, for storage of tobacco, under a licence from the Central Excise authorities, under the provisions of the Act. On February 3, 1959, a Deputy Superintendent of Central Excise at Kannauj went to inspect the ware-house. It was alleged that both the father Jwala Prasad and his son the respondent Daya Shanker avoided inspection by making themselves scarce. The Deputy Superintendent, however, got the locks removed, inspected the ware-house and found a number of irregularities involving breaches of the Act and the Rules framed thereunder. On June 15, 1959, the Assistant Collector of Central Excise at Fatehgarh filed a complaint against both alleging commission by them of offences under Section 9 of the Act. A perusal of the complaint, as also of the judgment of the learned Magistrate, makes it clear that an objection on behalf of the accused persons was raised before the learned Magistrate that the complaint under Section 9 was vague inasmuch as it was not clear as to which of the various clauses oi Section 9 were alleged to have been contravened. The learned Magistrate took the view that though there were four sub-clauses in Section 9 of the Act the offences alleged to have been committed appeared to fall under clauses (a) and (b). What is important to notice is that both the accused were tried on that footing, found guilty of contravention of the aforesaid clauses and convicted accordingly. 3. The learned Judge, on appeal, took the view that so far as the respondent Daya Shanker was concerned he could not be convicted for the reason that he was neither the owner nor an agent, as contemplated by rule 3 of the Central Excise Rules, 1944, hereinafter referred to as the Rules, so as to be deemed to be the owner. The learned Judge accordingly acquitted the respondent Daya Shanker. 4. The learned Government Advocate, who has appeared before us in support of this appeal, has raised two points. The first is that the respondent was guilty under clauses (a) and (b) of Section 9 of the Act, and secondly, that in any case the respondent is guilty as an abettor under clause (d) of Section 9 of the Act. Learned counsel has urged that there was no controversy that the respondent was the manager of the firm and looked after its business on behalf of his father Jwala Prasad who was the sole proprietor of the firm and that being so the offences alleged to have been committed by the accused should have been found to have been committed by the respondent also inasmuch as Section 9 of the Act referred to "whatever" committed the offences laid down therein. Learned counsel's contention was that the learned Judge was wrong in referring to the provisions of rule 3 as confining the liability for contravention to an agent authorised and approved as provided in the aforesaid rule. On an examination of these contentions we have come to the conclusion that they cannot be accepted. 5. Learned counsel's contention was that the learned Judge was wrong in referring to the provisions of rule 3 as confining the liability for contravention to an agent authorised and approved as provided in the aforesaid rule. On an examination of these contentions we have come to the conclusion that they cannot be accepted. 5. The judgment of the learned Magistrate makes it clear that the case against the accused as regards contravention of clause (a) of Section 9 of the Act was that there had been contravention of rules 144, 172 and 190 of the Rules, whereas the case under clause (b) of Section 9 of the Act was that the same had been contravened by the accused by removal of 80 bags of tobacco, by which the contents of the ware-house were found short, in order to evade payment of duty payable under the Act. So far as the offence falling under clause (a) is concerned, it related to rules made under Section 37 of the Act, and we are in full agreement with the learned Judge that in considering the extent of constructive liability reference to the limitations placed by rule 3 of the Rules had to be made to ascertain the extent of such liability. Rule 3 aforesaid runs as follows :- "When any person is expressly or impliedly authorised by the owner of any goods, factory or ware-house to be his agent in respect of such goods or factory or ware-house for all or any of the purposes of these Rules, and such authorisation is approved by the Collector such person shall, for such purposes, be deemed to be the owner of such goods, factory or ware-house." 6. We do not desire to enter into the controversial question as to the extent to which a manager may be deemed to be an agent also. Suffice it to say that for the purposes of assessing the liability oi the respondent for breach of rules framed under Section 37 it is also necessary before the responsibility of the respondent can be put on the footing of an owner, to establish that the authority of the respondent as an agent had been approved by the Collector. Suffice it to say that for the purposes of assessing the liability oi the respondent for breach of rules framed under Section 37 it is also necessary before the responsibility of the respondent can be put on the footing of an owner, to establish that the authority of the respondent as an agent had been approved by the Collector. It has been conceded by the learned Government Advocate that he is unable to point out any material to make out that such control as the respondent exercised over the ware-house in his capacity as manager, which might be construed as parallel to the functions of an agent, had been approved by the Collector. It is, therefore, manifest that in respect of the offences falling under clause (a) of Section 9 the respondent could not be held guilty by reason merely of the circumstance that he was the manager of the firm and looked alter its affairs on behalf of his father. The principles of constructive criminal liability cannot be extended beyond certain limits and if such limits have been defined liability has to be found within the limits placed by that definition. Rule 3 of the Rules must be held to govern the case in so far as the offences alleged to fall under clause (a) of Section 9 are concerned. 7. As regards the allegation of the offence of evasion of payment of duty falling under clause (b), it was founded on the assertion that the inspecting authority found in the ware-house 80 bags less than what the ware-house should have contained. It may very well be that the mere fact of finding a shortage might justify an inference that they had been removed with a view to evading duty, but we express no opinion as to this. It appears to us sufficient to observe that the learned Government Advocate failed to point out to us any evidence whatsoever which might indicate that the respondent was, in any way, party to the removal of these 80 bags. It cannot, therefore, be said that merely because the respondent was the manager of the firm in charge of its business affairs he must be held responsible for shortage of 80 bags on the footing that he had been guilty of removing them for the purpose of evading duty. It cannot, therefore, be said that merely because the respondent was the manager of the firm in charge of its business affairs he must be held responsible for shortage of 80 bags on the footing that he had been guilty of removing them for the purpose of evading duty. We would like to add that, in the complaint filed under the signature of the Assistant Collector of Central Excise on June 15, 1959, in para 8 thereof, it was asserted as follows:- "That in order to defeat the claim of the department the accused No. 1 has transferred his two houses and other item of property including groves etc. by means of a Sale Deed on February 3, 1959." 8. The aforesaid allegation was, on its very face, confined to the respondents father, and no liability on the respondent could lie on account of the alleged transfers of property. The result, therefore, is that we are in full agreement with the learned Sessions Judge that the respondent could not be convicted either under clause (a) or clause (b) of Section 9 of the Act. 9. We now turn to the next contention raised by the learned Government Advocate, viz., that in any case the conviction of the respondent should be upheld with the aid of clause (d) of Section 9, as an abettor. We have already, in an earlier part of this judgment, referred to the circumstance that the complaint filed by the Assistant Collector' was vague, and that the learned Magistrate proceeded to try both the accused on the footing that they were charged with offences falling under clauses (a) and (b). There was no suggestion that the prosecution intended to fix liability on the respondent as an a better with the aid of clause (d) of Section 9. In view of the aforesaid circumstances it is clear that the respondent was not called upon to meet the case sought to be supported against him as an abettor with the aid of clause (d) of Section 9. In the appellate Court also it does not appear to have been suggested that the conviction of the respondent should be maintained with the aid of clause (d), as an abettor. In the appellate Court also it does not appear to have been suggested that the conviction of the respondent should be maintained with the aid of clause (d), as an abettor. There is a clear recital in the appellate judgment that the learned D.G.C., who appeared before him for the State, conceded that the prosecution case against the appellants, who included the present respondent, was confined to clauses (a) and (b) of the Act. In these circumstances, we do not consider it appropriate now to enter into the question whether the liability of the respondent as an abettor had been made out because, in doing so, we might be overlooking prejudice to the respondent in his defence, it is clear that if liability, is sought to be fixed on the respondent, as an abettor, a fresh trial must take place. 10. The offence is alleged to have been committed early in 1959 and the respondent was convicted by the learned Magistrate in May 1962. The learned Sessions Judge acquitted the respondent in August 1963, and 2 years more have passed since then. We consider it wholly inappropriate, in such circumstances, to direct a re-trial. 11. In the result this appeal fails and is dismissed.