Yahya Ali, J. - (1.)THE petitioner who was the first accused in the lower Court has been convicted of the offence of contravening the provisions of the Drugs Control Order, 1943. He is alleged to have sold a bottle of Adexelin to P.W. 2 for Rs. 2 - -12 - -0 while the control price of the drugs was Rs. 2 - -6 - -0. The conviction by the trying magistrate was under Section 9(a) of the Drugs Control Order read with Rule 81(4) of the Defence of India Rules. Section 9(a) of the Drugs Control Order refers only to wholesale or retail dealers and not to their servants or clerks. Rule 81 of the Defence of India Rules does not carry the matter further. This rule was amended on 17th July, 1945, so as to bring within the operation of Section 9 of the Drugs Control Order, servants or agents, etc. But the fact remains that until 17th July, 1945, persons other than wholesale or retail dealers were not within the purview of the Drugs Control Order. The learned Sessions Judge who heard the appeal against the conviction held that the case fell within the purview of Rule 121 of the Defence of India Rules which runs thus:
Any person who attempts to contravene, or abets or attempts to abet, or does any act preparatory to, a contravention of, any of the provisions of these rules or of any order made thereunder shall be deemed to have contravened that provision or, as the case may be, that order.

It is to be noted that the trying Magistrate did not invoke the aid of Rule 121 of the Defence of India Rules. Nor did he base his conviction on that provision. The charge against the accused does not refer to Rule 121 of the Defence of India Rules, and hence the conviction based on that rule obviously cannot stand. In this view it is not necessary to go into the merits of the case although a long argument on the merits was addressed by Mr. Krishnamurthy, the learned Advocate for the petitioner, and if a finding were necessary, I should have had no difficulty in agreeing with the concurrent findings of the Courts below that the first accused sold the drug for a price higher than the control price. The conviction and sentence for the reason mentioned above must however be set aside. The petition is allowed and the fine if paid shall be remitted.