1. This is an appeal, by the Government of Bombay, against an order of acquittal by the Second Class Magistrate of Ahmedabad. The accused was charged under Section 151, Sub-section (4), of the Bombay District Municipal Act (Bom. Act III of 1901). The charge in substance against him was that he conducted his timber shop without a license. The accused was asked his explanation about this charge, and his explanation was that the license had not been received even though monies had been paid, that he had a license during the previous year, and that no reply was given to his application.
2. The complainant was examined, and he stated as to how the license, which the accused had for the previous year, had terminated on April 1, 1925, and how his application for a license, dated July 14, 1925, was rejected on July 25. It is not necessary to examine further the effort of the accused to get a license for the purposes of this case. The fact remains that on the date of the complaint he had no license, and he did not deny that he was conducting a timber shop at the time as alleged, but he explained how it was that he had remained without a license. It is true that there is no direct evidence in the case to show that the place was used for storing wood. The learned Magistrate came to the conclusion that there was no evidence of storing wood. Though he was satisfied that wood was kept for sale, he held that the conditions of Clause (n) of Sub-section (1) of Section 151 were not satisfied: and, accordingly, he held that the act of the accused was not punishable under Sub-section (4).
3. In taking this view, it seems to me that the learned Magistrate has taken much too narrow a view of the meaning of the words used in Clause (n), It does not seem to have been questioned at all that the accused did conduct his shop without a license, and apparently the learned Magistrate also says at one place in his judgment that the accused in this case kept wood for sale, Such storing would be within the meaning of Clause (n). Even if the wood was brought for the purposes of the day's business and disposed of on that very day, or the next day, still, if the wood was kept there for business purposes, it would be storing wood within the meaning of Clause (n) of Sub-section (1) of Section 151.
4. I desire to make it clear that, in taking this view, I do not wish to be understood as suggesting that, if a person carries on business in wood, without keeping any wood at a place of business, any license would be required for conducting such a shop by the by-laws of the Municipality, under Section 48, Sub-section (1), Clause (b), Sub-clause (iii), or that it is not open to a parson to conduct his business in that place without a license. But, in the present case, there is no doubt that the necessary implication of the complaint was that wood was kept for sale. Really, in a case of this kind, it would have been more satisfactory if the prosecution had stated in terms whether wood was kept there or not, instead of leaving it to be inferred in this manner. But, as there is no doubt, under the circumstances, that the wood was kept as found by the learned trial Magistrate, we think that the decision of the trial Magistrate is really based upon a wrong construction of Clause (n) of Sub-section (1) of Section 151.
5. We, therefore, sat aside the order of acquittal, and convict the accused, under Sub-section (4) of Section 151 of the Bombay District Municipal Act, and sentence him to pay a fine of Rs. 5.
6. Two conditions are required for a conviction under Sub-section (4) of Section 151. The first is the use, without a license, of a place in a particular Municipal area, for which by-laws have been framed requiring such licenses to be obtained. That condition has been shown to apply in the present case. The by law, under Section 48(b)(iii) of the Bombay District Municipal Act, did require a license for a place used either for storing wood, or for selling wood. Then, the second condition is, that the person using a place without a license is using that place for any purpose mentioned in Sub-section (1) ; and the particular part of Sub-section (1) that is applicable is Clause (n) about storing various combustible substances including wood. The learned Magistrate, in coming to the conclusion that it is not shown that the accused used the place for storing wood, was influenced by a decision of this Court in Emperor v. Wallace Flour Mill CompanyI.L.R. (1904) 29 Bom. 193: 6 Bom. L.R. 735. That was a case where the proprietors of a Flour Mill were charged with having contravened certain provisions of the City of Bombay Municipal Act, and a question arose whether they had used certain premises for the purpose of storing oil. The Court held that, inasmuch as the evidence showed that they had only kept a supply for a few days' use, not for the dominant purpose of storage, but for the daily use of the mill, the case did not fall within the statute. That is an entirely different case to one where a man stores wood or oil, or any substance of the kind mentioned in Section 151, for the purpose of selling it; and this has been pointed out in Seshachalam Chetty v. Emperor (1913) Cri. L.J. 103. In that case the accused was found to have rented certain premises for storing oil without a license and the judgment says (p. 108) :-
The evidence is that the petitioners are traders in oil, in considerable quantities which is kept by them in a go-down ; some stock of it may be kept in a part of the shop for the purpose of meeting the retail demand. The stock naturally varies in quantity and may at one time be not more than will suffice for a day or less and at another be enough for several days ; but the place where the stock is kept is regularly used for the purpose of holding the stock and naturally a quantity of oil ordinarily sufficient to meet the estimated demand for the period which must elapse before renewal is possible, will usually be maintained there. We think that a place so used may properly be described as a place for ' storing ' the stock of oil which is to be sold at the earliest opportunity.
7. Very much the same reasoning applies to the present case. The accused, undoubtedly, used what is described as a shop for selling wood, and kept wood there in order to sell it. That is a case which properly comes within the meaning of Clause (n), as there would be continual storing of wood for the purpose of selling it, and not a casual storage of a few days' supply for domestic use,
8. I concur in the order convicting the accused and sentencing him to pay a fine, as proposed by my learned brother.