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Emperor Vs. Hasam Mamad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCriminal Reference No. 48 of 1940
Judge
Reported inAIR1940Bom378; (1940)42BOMLR785
AppellantEmperor
RespondentHasam Mamad
Excerpt:
.....152, sub-section (1) (b), must be read ejusdem generis as the words ' box, bale, package or merchandise ' used in the section. these words seem to cover merchandise, and things in which merchandise can be packed, and any other thing must be of the same kind or genus and does not include a vehicle.; hence, a motor car or a motor lorry or a horse drawn or hand-propelled vehicle, though containing merchandise and left standing in a street, does not come within the section. - - no doubt you may have a stall on wheels, but i am clearly of opinion that introducing into' a street a lorry on wheels with goods for sale upon it does not amount to setting up a stall within section 152 (1) (a). in my opinion that sub-section deals with making some form of addition or annexe, more or less..........or obstruction, or (6) shall deposit or cause to be placed or deposited any box, bale, package or merchandise or any other thing, in any public place or street... shall be punished...'2. the question is whether the hand-cart, which the accused had kept in the street, fell within the prohibition contained in section 152, -sub-section (1), of the bombay3. municipal boroughs act. it was conceded in the lower court that the case did not fall within sub-section (1)(a) of that section. but mr. g. n. thakor, who seldom concedes anything, did not concede that proposition. he says that the act of the accused amounted to setting up a stall. no doubt you may have a stall on wheels, but i am clearly of opinion that introducing into' a street a lorry on wheels with goods for sale upon it does not.....
Judgment:

John Beaumont, Kt., C.J.

1. This is a reference made by the Sessions Judge of Ahmedabad in three cases. The accused were convicted under Section 152 of the Bombay Municipal Boroughs Act, 1925, their offences consisting of having allowed hand-driven lorries containing fruit to remain for more than half an hour on a public street in Ahmedabad. The learned Sessions Judge was of opinion that the offences did not fall within Section 152. That Section provides that'(1) Whoever in any area after it has become a municipal district, or borough (a) shall have built or set up, or shall build or set up, any wall or any fence, rail, post, stall, verandah, platform, plinth, step or any projecting structure or thing, or other encroachment or obstruction, or (6) shall deposit or cause to be placed or deposited any box, bale, package or merchandise or any other thing, in any public place or street... shall be punished...'

2. The question is whether the hand-cart, which the accused had kept in the street, fell within the prohibition contained in Section 152, -sub-Section (1), of the Bombay

3. Municipal Boroughs Act. It was conceded in the lower Court that the case did not fall within Sub-section (1)(a) of that Section. But Mr. G. N. Thakor, who seldom concedes anything, did not concede that proposition. He says that the act of the accused amounted to setting up a stall. No doubt you may have a stall on wheels, but I am clearly of opinion that introducing into' a street a lorry on wheels with goods for sale upon it does not amount to setting up a stall within Section 152 (1) (a). In my opinion that Sub-section deals with making some form of addition or annexe, more or less permanent, to a building in the street. It is directed against the man who has a shop or house in the street, and who encroaches upon the street by making some sort of addition to his house or shop.

4. I think the real question is whether the case can be brought within Section 152, Sub-section (2) (b). In my opinion the words 'or any other thing' must be read ejusdem generis as the words ' box, bale, package or merchandise.' Those words seem to cover merchandise, and things in which merchandise can be packed, and any other thing must be of the same kind or genus and does not include a vehicle. In my view a motor car or a motor lorry or a horse drawn or hand-propelled vehicle, though containing merchandise and left standing in a street, cannot be said to come within the Section. The hand lorry of the accused clearly falls within the definition of vehicle contained in Section 3, Sub-section (21), of the Bombay Municipal Boroughs Act. The control of vehicles in streets is dealt with by the Bombay District Police Act. Whatever the powers of the police may be under that Act, I am of opinion that the learned Sessions Judge was right in the view he took that a vehicle does not fall within the mischief of Section 152.

5. Therefore we accept the reference in all the three cases, and set aside the convictions in the first two cases (Nos. 13035 and 13036), and the interlocutory order in the third case (No. 10195). Fines (if paid) to be refunded.


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