G. Mehrotra, C.J.
This is an appeal on behalf of the complainant against an order of acquittal passed by the Magistrate. The respondents were all prosecuted under Section 26 of the Northern India Ferries Act. The case set out in the complaint is that the complainant is the lessee of Kharupatia BhuragaOn Perry for five years from 1957 to 1982 at Rs. 57,500/-. The complainant is the Mahaldar of the said ferry, Fatechand Saraogi respondent No. 1 is a businessman of Kharupatia and the other respondents are boat-men. The respondents other than Fatechand Saraogi were plying their boats in the prohibited area of the complainant's ferry. The case was instituted against them which was compromised. Thereafter the complainant states that they were plying their boats without paying the toils and without the permission of the Mahaldar within the Jurisdiction of the complainant's Kharupetia Bhuragaon. Parghat. On the date of occurrence they refused to pay the tolls for carrying goods in the private boats from the prohibited area. They plied their boats to the Steamer Ghat at a distance of two miles. The charge against the respondent No. 1 is that he instigated these persons not to pay the tolls and to carry his goods without payment of any tolls. The Magistrate acquitted all the respondents.
So far as four of the respondents fire concerned, it is admitted by the counsel for the appellant that there is no evidence to show that they carried their goods on the date of occurrence. In that view of the matter there is no case against the respondents other than Rambharas Majhi, Jogdeo Maji, Ranke Maji, Sohan Maji, Fakira Maji, Dwarika Maji, Janki Maji and phanaur Maji. The Magistrate however, has acquitted all the respondents on the ground that the prosecution have failed to prove that the accused persons actuary carried goods in their boats from Kharupetia Ghat to the Kharupetia Steamer Ghat within the prohibited limits. The Magistrate has come to that finding mainly on the circumstance that the prosecution failed to produce the notification which defines the limits of the ferry. In the absence of the notification the Magistrate in our opinion has rightly held that it was not possible to hold that the accused plied their boats within the prohibited limits.
2. Mr. Goswami who appears for the appellants, has strenuously contended that the notification has the force of law and it was the duty of the Magistrate to send for the notification End satisfy himself as to what was the actual limit of the ferry. We do not think that without the notification the Magistrate could have come to any correct conclusion as to whether the accused were plying their boats within the prohibited limits or not. If the prosecution had asked for time to produce the notification, the Magistrate in our opinion would have granted him time. But in the absence of any such request it cannot be said that the Magistrate has gone wrong in holding that in the absence of such a notification it was not possible to hold that the accused have plied their boats within the prohibited limits.
3. It is then urged that even at this stage this Court in appeal can look into the notification. It is an appeal against the acquittal and we do not think that we would be justified in granting an opportunity to the appellant to file the notification and then send back the case to the Magistrate for determination as to whether the prosecution has succeeded in proving the fact that the respondents plied their boats within the prohibited limits.
4. Apart from that, we are also of opinion that no offence has been committed by the respondents under Section 26 of the Northern India Ferries Act (hereinafter called 'the Act'). Section 26 of the Act reads as follows:
Whoever establishes, maintains or works a ferry in contravention of the provisions of Section 13 shall be punished with fine which may extend to five hundered rupees, and with a further fine which may extend to one hundred rupees for every day during which the ferry is maintained or worked in contravention of those provisions.
Section 13 of the Act provides as follows:
Except with the sanction of the Magistrate of the district or of such other officer as the State Government may from time to time, appoint in this behalf, by name or in virtue of his office, no person shall establish, maintain or work ,a ferry to or from any point within a distance of two miles from the limits of a public ferry.
Provided that, in the case of any specified public ferry, the State Government may, by notification in the official Gazette, reduce or increase the said distance of two miles to such extent as it thinks fit:
Provided also that nothing hereinbefore contained shall prevent persons plying between two places, one of which is without, and one within, the said limits, when the distance between such two places, not less than three miles, or apply to boats which do not ply for hire, or which the State Government expressly exempts from the operation of this section.
Under Section 26 it has been laid down that anybody who establishes the ferry in contravention of the provision of Section 13 or works a ferry in contravention of the said section, shall be punished with fine which may extend to rupees five hundred. The main question therefore is whether the respond has on the admitted facts can be said to have either established the ferry or worked the ferry within the meaning of Section 13 of the Act.
5. The complainant in his statement has said that Kharupetia Steamer ghat is on the northern bank of the Brahmaputra and on the same side tile Ferry Ghat is situated. The prosecution case is that the accused were carrying goods from the appellant's ferry to Kharupetia Steamer Ghat. This statement clearly shows that the accused were not crossing the river on their own boats. They were going on the same side of the appellant's ferry from one point to the other. We do not think that that will constitute establishment of a ferry and therefore even if the facts are admitted, it cannot be said that the respondent have committed any offence under Section 26 of the Northern India Ferries Act.
6. Mr. Goswami has very strenuously contended that the establishment of a ferry does not necessarily mean that one should cross the river. Even if from one point to the other on the same side some people were carrying goods in a boat that will constitute establishment; of a ferry within the meaning of Section 26 of the Act. We do not think that this interpretation is correct. We may in this connection refer to a decision of this Court reported in AIR 1960 Assam 67, Jatinga Valley lea Co. Ltd. v. State of Assam and the case of Jeobaraii Singh v. Ramkishun Lal reported in AIR 1926 Pat 520. The following observations in the Patna case at page 523 are apposite:
The plying of a boat for hire along the one bank of the river would be no offence.
It is true that the Assam case referred to by me arose out of different facts but the principles laid down therein will apply to the facts of the present case. In our opinion therefore, even on the admitted facts no offence is made out under Section 26 of the Act.
7. It was then urged that even though there was no charge under Section 25 of the Act, the respondents on the admitted facts could be convicted under the said section. Under Section 13 there is a complete prohibition to establish any ferry or to ply boats within two miles of the Ferry Ghat. The inference to be drawn from Section 13 is that the extent of the Perry Ghat of the lessee will be deemed to be up to two miles of the ghat on either side of the river. If the distance of two miles is to be regarded as a ferry ghat of the lessee, the respondents were liable to pay tolls for carrying goods within that prescribed limit, and their failure to pay the tolls constitutes an offence under Section 25 of the Act. We do not think that Sec 25 applies to the facts of the present case. Section 25 reads as follows:
Every person crossing by any public ferry, or using the approach to, or landing place thereof, who refuses to pay the proper toll, and every person:
who, with intent to avoid payment of such tolls, fraudulently or forcibly crosses by any such ferry without paying the toll, or
who obstructs any toll collector Or lessee of the tolls of a public ferry, or any of his assistants, in any way in the execution of their duty under this Act, or who, after being warned by any such toll-collector, lessee or assistant not to do so, goes or takes any animals, vehicles or other things into any ferry-boat, or upon any bridge at such a ferry, which is in such a state or so loaded as to endanger human life or property, or who refuses or neglects to leave, or remove any animals, vehicles or goods from any such ferry-boat or bridge, on being requested by such toll-collector, lessee or assistant to do so,
shall be punished with fine which may extend to fifty rupees.
The plain reading of Section 25 will make it clear that no offence is made out under Section 23 unless anyone crosses the river. Using a part of the river on the same side in our Opinion, will not mike the public liable to pay tolls for such use unless it is used for the purpose of crossing the river. In any view of the matter we are of opinion that the judgment of the Magistrate is perfectly correct and the appeal is accordingly dismissed.
S.K. Dutta, J.
8. I agree.