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Emperor Vs. Kalabhai Mahomedalli - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case Number Criminal Application for Revision No. 145 of 1936
Judge
Reported inAIR1937Bom11; (1936)38BOMLR967; 166Ind.Cas.277
AppellantEmperor
RespondentKalabhai Mahomedalli
Excerpt:
indian petroleum act (viu of 1899), section 15.;the accused transported forty gallons of petroleum from the burma shell depot at barpda by rail to godhra without a storage license, and at the latter place had it stored directly in the godown of a merchant who had the license. the accused having been convicted under section 15 of the indian petroleum act, 1899, for being in possession of petroleum without a license :-;that the accused had committed no offence under the provisions of the indian petroleum act and rules made thereunder, for it was not necessary, under the circumstances, that the accused should himself have a license for storage or possession. - .....viii of 1899, and fined rs. 51. his appeal was dismissed by the sessions judge. there were two accused persons originally. the applicant was accused no. 1. the charge against him was that he transported twenty cans, i.e. forty gallons of petroleum from the burma shell depot at baroda by rail to godhra without a storage license as required by the act and rules. the charge against the other accused was that in contravention of the provisions of the act and rules he was in possession of petroleum for which there was no license. the sessions judge acquitted accused no. 2 and we are not concerned with his case. it appears that he had a license for the storage of petroleum.2. the contention of the applicant accused no. 1 was that he had sold the petroleum to accused no. 2 who, as i say,.....
Judgment:

Broomfield, J.

1. The applicant in this case was convicted of an offence under Section 15 of the Indian Petroleum Act, VIII of 1899, and fined Rs. 51. His appeal was dismissed by the Sessions Judge. There were two accused persons originally. The applicant was accused No. 1. The charge against him was that he transported twenty cans, i.e. forty gallons of petroleum from the Burma Shell Depot at Baroda by rail to Godhra without a storage license as required by the Act and rules. The charge against the other accused was that in contravention of the provisions of the Act and rules he was in possession of petroleum for which there was no license. The Sessions Judge acquitted accused No. 2 and we are not concerned with his case. It appears that he had a license for the storage of petroleum.

2. The contention of the applicant accused No. 1 was that he had sold the petroleum to accused No. 2 who, as I say, possessed a storage license and that immediately on arrival of the petroleum at the railway station at Godhra he had asked the carting agent to take it to accused No. 2's godown where it was stored. The story that he had sold the petroleum to accused No. 2 has been disbelieved. But it is apparently a fact that he did not take possession of the petroleum but had it immediately conveyed to the premises of a person who had a license for storage. The question is whether under* these circumstances it was necessary that accused No. 1 should himself have a license for storage or possession, and after examining the provisions of the Act and the rules which have been pointed out to us we are of opinion that it was not necessary.

3. One of the complaints which accused No. 1 made in his appeal was that the charge had not been framed in such a way as to give him reasonable notice of the offence he was alleged to have committed. The judgment of the trial Magistrate merely refers to Section 15 of the Act, which is the general section providing a punishment for breaches of the rules. No particular rule is referred to by him in his judgment. Nor has he referred to any section of the Act except Section 15. However, it was a summons case and it is possible that the charge may have been explained to the accused. We cannot help feeling some little doubt as to that because the complaint, though it refers to Sections 5 and 6 of the Act, does not refer to- any particular rules which are alleged to have been broken, and even in this Court we have had considerable difficulty in ascertaining from the learned Assistant Government Pleader what exact offence the accused is supposed to have committed.

4. It is clear, however, for a start that the conviction is supposed to be based in some way on Section 6. Section 6 provides that no quantity of dangerous petroleum equal to, or less than, forty gallons shall be kept or transported without a license. Chapter IV of the rules framed under Section 9 of the Act deals with licenses for the possession of petroleum. The only rule to which our attention was drawn was Rule 4 which provides that licenses for the possession of dangerous petroleum in quantity not exceeding forty gallons may be granted in form C. Form C is the ordinary license to possess dangerous petroleum in quantity not exceeding forty gallons. It is a license for the storage of a specified quantity of dangerous petroleum in a storage shed which is to be described below the license. There seems to be no provision for a license to possess other than the storage license and if the contention of the Crown in this case is correct and it was necessary for the accused as consignee to have a storage license, then it was also necessary for him to have a storage shed to be described in the license itself. Prima facie, however, a person who has no intention of storing or keeping petroleum but merely orders it with the intention of having it stored on licensed premises belonging to another person is not required to have a license under Section 6 or the rules framed thereunder.

5. The rules as to transport are contained in Chapter V. Rules 1 and 2 provide for the issue of general licenses for the transport of petroleum. Rule 4 provides that the holder of a general license granted under rules 1 and 2 (or 9, with which we are not concerned) shall, with each consignment of petroleum conveyed under cover of his license, issue to the person who takes charge of the petroleum for the purpose of transporting it, a numbered pass in form I. Now it is an admitted fact that the Burma Shell Company have a general license for the transport of petroleum and they did issue a pass for transport in this case under rule 4. The pass issued was in form I, as originally prescribed, but that form has been recently amended by a Government Resolution of April 25, 1933, and the form as amended states that the pass covers the specified number of gallons of dangerous or non-dangerous petroleum consigned to so and so the holder of a license in form ... .to possess... gallons of dangerous or non-dangerous petroleum while in transport from such and such to such and such place. The argument on behalf of the Crown appears to be that this form which has been sanctioned by Government requires that petroleum shall not be consigned to any person by the holder of the license to transport unless the consignee has a license to possess. There are several difficulties in the way of this contention. In the first place Rule 4 of Chapter V, which I have read, would, according to its natural construction, refer to a pass to be given to the carrier or the person who conveys the goods from the consignor to the consignee. It is difficult to see how the words 'the person who takes charge of the petroleum for the purpose of transporting it' could be applied to the consignee, i.e., to the accused in this case, for he did not take charge of the petroleum for the purpose of transporting it, even if he can be said to have taken charge of it after it had been transported and had arrived at Godhra. All that the pass in the amended form seems to require is that the consignee, should have a license in some form to possess the petroleum while in transport from one place to the other, and not after arrival at the destination. Moreover, even if we assume that the effect of this amended form of transport pass is to require that the consignee must have a license to possess or store, it by no means follows that accused No. 1 has been guilty of the breach of any provision in the Act or rules. Apparently he was not in any way responsible for the fact that the Burma Shell Company issued the pass in the old form and not in the amended form.

6. In this connection a question also arises as to whether Government have power to make a rule imposing the obligation of having a storage license on a person who orders petroleum not for the purpose of possessing or storing it himself but with the intention of having it stored on the licensed premises of another. The rule-making power is contained in Section 9 of the Act :

The Local Government, with the previous sanction of the Governor General in Council, may make rules to regulate the importation of petroleum and the granting of licenses to possess or to transport petroleum within the Province in cases in which such licenses are by law required.

7. We are not concerned with the importation of petroleum. To import is defined in Section 2 (c) as meaning to bring into British India by sea or land. Now the petroleum was consigned in this case from Baroda, but we are informed on behalf of the Crown that the railway yard at Baroda from which it was despatched is in British India. Therefore it is a case of transporting and not of importing. Rules may be made regulating the granting of licenses to possess or to transport but only in cases in which such licenses are by law required. It is obvious, therefore, that Government cannot make a rule requiring that persons must have a license except for the purpose of possessing or transporting, or for the purpose of possessing or transporting except as provided in the Act. It may be that by way of regulating the grant of licenses to transport it is within the power of Government to provide that petroleum shall not be consigned to a person possessing a storage license. But assuming that to be so, and assuming that that is what the amended form I means, it is not the accused who has been guilty of the breach of a rule but the Burma Shell Company which consigned the petroleum to him.

8. In my view it cannot reasonably be said that the accused either kept or transported petroleum in the circumstances of the present case. No doubt the definition of 'transport' in Section 2 (d) is a very wide one: 'transport' means to remove within British India from one place to another. It would make no difference, however, in my opinion, even if we were to hold that the accused comes within the definition of transporter, for it is not suggested that he required a license for the transport of the petroleum. It was validly transported under the general license possessed by the Burma Shell Company, and it is conceded by the learned Assistant Government Pleader that everything would have been regular and in order if only the accused had himself possessed a license for storage of the petroleum consigned to him. This the law does not seem to require.

9. We think, therefore, that the conviction of the accused must be set aside and the fine refunded. It follows that the order of confiscation must also be set aside and the petroleum should be returned to the person from whose custody it was taken, i.e., accused No. 2.


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