Basil Scott, Kt., C.J.
1. In this case the accused was charged with yoking to his Tonga a pony which was not licensed and thereby committing an offence under Section 2 of the Public Conveyances Act (Bombay Act VI of 1863), which provides that no person shall keep or let for hire any public conveyance without having a license in force for the same. The learned Magistrate found that no offence had been committed because there is nothing in the Act which makes the yoking of an unpassed pony to a licensed tonga an offence punishable under the Act.
2. The question of the licensing of conveyances under this Act was very fully discussed by this Court in Gell v. Taj a Jvoorai (1903) 5 Bom. L.R. 133. It was urged in appeal in that case that the requirements of Section 6 of the Act extended only to the equipment of conveyances and that the words 'otherwise unfit' must be construed as relating only to defects ejusdem generis with defects in equipment and that neither of the expressions used would permit any consideration of the motive power to be employed. Mr. Justice Batty, however, said :-
Now a license must under Section 4 specify the number of horses or other animals by which the conveyance shall be drawn and therefore in granting the license the Commissioner must necessarily consider with reference to the number of horses to be specified and the structure of the vehicle whether it is defective for the purpose of conveying the public. If the number of horses provided is insufficient for that purpose it is insufficiently found and if defective in structure or material it is otherwise unfit. If the motive power could be ignored, an immoveable machine might be approved. The line must manifestly be drawn before absurdity is reached.
3. In accordance with that decision the license of the accused specified the ponies which were to provide the motive power included in the public conveyance. The accused has plied his tonga with another pony which was not licensed, that is with motive power which has not been approved. Acting upon the decision in Gell v. Taj a Noora (1903) 5 Bom. L.R. 133 we hold that he has committed an offence under Section 2 and we sentence him to a fine of one rupee.