N.J. Wadia, J.
1. This is an appeal by the Government of Bombay against an order of acquittal made by the First Class Magistrate, Olpad. The accused was charged with having committed a breach of Rule 93 (2) of the rules under the Motor Vehicles Act, 1939, He was the driver of a motor trolly which was licensed as a goods vehicle. On December 1, 1940, he was found carrying twenty-three persons in the lorry from Surat to Kathodra, He admitted having carried these persons as alleged. His defence was that he was carrying them not as passengers for hire but as his personal friends, that there were no goods being carried in the vehicle at the time, and that the space in the vehicle, nine and a half feet by five and a half feet, was sufficient to accommodate all these persons.
2. The learned Magistrate acquitted the accused on the ground that as the trolly, though licensed only to carry goods, was not actually carrying any goods at the time, there was no breach of Rule 93(2). Rule 93, Sub-rule (1), provides that, save in the case of a stage carriage in which goods are being carried in addition to passengers, no person shall be carried in a goods vehicle other than a bona fide employee of the owner or the hirer of the vehicle, and except in accordance with this rule. Sub-rule (2) provides that no person shall be carried in the cab of a goods vehicle beyond the number for which there is seating accommodation at the rate of fifteen inches measured along the seat, excluding the space reserved for the driver, for each person, and not more than six persons in all in addition to the driver shall be carried in any goods vehicle. Section 2 of the Motor Vehicles Act defines a ' goods vehicle ' as any motor vehicle constructed or adapted for use for the carriage of goods. It is not disputed that the motor vehicle in this case was a trolly licensed as a goods vehicle.
3. The only point urged on behalf of the accused is that the rule restricting the number of persons who may be carried in a goods vehicle is intended to apply when the goods vehicle is loaded with goods and not when the vehicle happens to be carrying no goods. But Sub-rule (2) of Rule 93 lays down unconditionally the number of persons that may be carried in a goods vehicle, and that this provision is meant to apply even when it does not happen to carry any goods is clear from the provisions of Sub-rule (4) which lay down the conditions subject to which more than six persons may be carried in a goods vehicle. Sub-rule (4) provides that more than six persons may be carried on a permit being obtained provided that the number to be carried does not exceed the floor area divided by seven. It is obvious that this rule contemplates a goods vehicle being used for carrying persons when it is not loaded with goods at all. Clearly therefore the accused was not entitled to carry persons in excess of six in his trolly without a permit. Admittedly no permit was obtained, and as the number of persons carried was in excess of that allowed by Sub-rule (2) of Rule 93 he was guilty of a breach of that rule. The appeal is allowed and the order of the learned Magistrate set aside. The accused is convicted under Section 112 of the Act for having committed a breach of Rule 93, Sub-rule (2), and sentenced to a fine of Rs. 5 (five), in default to undergo simple imprisonment for one week.
4. I agree.