1. Petitioner has been sentenced to two months rigorous imprisonment under Section 55 (a), Mad. Act 1 of 1886, read with Section 61, and to a fine of Rs. 100 under Section 56 (b) read with Section 64.
2. It is found that accused, the renter of an arrack shop, ordered his servant P. W. 4 illicitly to transport four gallons of arrack to Madura which was seized by the abkari officers in the course of transport. The Sub-Magistrate finds. on these facts that accused abetted the commission of an offence under Section 55 (a). He presumably means that the accused arranged for the transfer, though he did not actually carry the stuff himself, which is, to transport with in the meaning of Section 55 (a). He cannot be using “abet” in its technical sense. Coupling Section 55 (a) with Section 61 must be a mistake, but it has not prejudiced the petitioner. He also finds that opening the shop and keeping false accounts was done in breach of the license by persons in accused’s employ; accused is therefore guilty under Section 55 (a) read with Section 64.
3. Presumably Section 64 only refers to Section 56 (a). Accused is proved by direct evidence to have committed the offence under Section 55 (a) and there is no reason to refer to Section 64. He is not presumed to have committed the offence and he is not charged merely because persons in his employ committed the offence without his taking due precautions.
4. A constructive offence under Section 56 read with Section 64 is not punishable with imprisonment under the proviso to Section 64; yet the Magistrate says that it is so punishable and no construction of law can make it otherwise. This is wrong, but it refers to the sections under which accused has, as a matter of fact, only been fined. Accused therefore has not been prejudiced.
5. The Sub-Divisional Magistrate gives reasons for a deterrent sentence and it is unnecessary to interfere either on this account or because of the technical errors discussed above.
6. The petition is dismissed.