1. The applicant in this case has a license for the possession and storage of dangerous petroleum in Form B issued in accordance with Rule 3 of Chapter IV of Part II of the rules under the Indian Petroleum Act. He has been convicted and fined Rs. 50 under Section 15 (c) of the Act which renders penal the breach of any condition contained in a license granted under the Act. The license granted to the applicant is In this form. It is headed 'License to possess dangerous petroleum, otherwise than in bulk, in quantity exceeding forty gallons'. It then proceeds as follows :-
License is hereby granted to Mr. I). T Parmar of Surat for the storage, In the storage shed at Dohad described below, of 1000 one thousand gallons of dangerous petroleum subject to the rules for, the storage of petroleum published in Notification No. 2572 dated May 18, 1909, and to the further conditions on the back of this license up to December 31, 1928.
2. Then there follows a description of the storage shed. We are not concerned with the further conditions on the back of the license as it has not been suggested that there has been any breach of those.
3. The facts of the case are that on three occasions, viz., March 16, 1929, June 20, 1929, and August 10, 1929, 660 cans of dangerous petroleum which had been consigned to the accused's firm were delivered to the manager of the firm at the Dohad Railway Station. 660 cans contain 1320 gallons, but the whole quantity was not on any of these three occasions stored in the shed belonging to the accused in respect of which the license has been granted to him. On the first two occasions the excess quantity was stored on the accused's behalf in a properly licensed storage shed belonging to one T. K. Singaporewala. On the third occasion the excess quantity beyond the thousand gallons which the accused was entitled to store in his shed was consigned by rail to M. C. Parikh, a partner of the firm, at Sunth Koad Station.
4. The contention of the prosecution is that the license granted to the accused prohibits his being in possession of more than a thousand gallons of dangerous petroleum, whether the petroleum is stored in his own licensed shed or in any other place. The trial Magistrate has referred to the definition of the word 'possession' given by Sir James Stephen in his Digest of Criminal Law, (p. 243):-
A moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need.
5. The learned Magistrate has taken the license granted to the accused to be a license for the possession of a thousand gallons of dangerous petroleum in the above sense of the word 'possession' and considers therefore that there has been a breach of the conditions of the license. The learned Government Pleader has supported this view. He relies upon the heading to the license and contends that this ought to be regarded as one of the terms. In our opinion this is not a reasonable view to take. The words at the beginning 'License to possess dangerous petroleum, otherwise than in bulk, in quantity exceeding forty gallons' are clearly no more than a descriptive heading. It would ha quite unreasonable to regard it as one of the terms of the license, particularly as no definite quantity of petroleum is specified therein. The operative part of the license is contained in the clause which I have already given and which merely provides for the storage of a thousand gallons of dangerous petroleum in the accused's storage shed at Dohad. As the accused has not been shown to have stored more than a thousand gallons in his shed it does not appear to us that there has been any breach of the conditions of the license. It was suggested to us by the learned Government Pleader that if a person to whom a license has been granted in respect of a thousand gallons may store a thousand gallons in his own shed and may also store a further quantity in a shed or sheds belonging to other persons there may perhaps be an avoidance of the payment of fees to Government. There is no evidence on the record on the question of fees, but anyhow it is obvious that if Government desires that the possession of dangerous petroleum in the sense of the word 'possession' which has been suggested to us should be restricted, nothing could be easier than for Government to prescribe a license in a form which would cover it. The license in the present case obviously does not cover it or cover anything else than the storage of one thousand gallons in the storage shed described in the license.
6. In our opinion, the accused has been wrongly convicted. We set aside the conviction and sentence and direct that the tine, if paid, be refunded.
7. I agree.