1. This is a reference by the learned Third Presidency Magistrate before whom the Municipal Commissioner of Bombay had lodged a complaint against the accused to the effect that the accused was guilty of infringing the 4th bye-law in Chapter III of the bye-laws, framed by the Bombay Municipal Corporation.
2. The facts are not in dispute and are very clearly set out at the beginning of the learned Magistrate's reference. There is, therefore, no need to recapitulate them. On the facts stated and admitted the learned Magistrate was of opinion that the prosecution must fail on several points of law. But as these points seemed to the learned Magistrate to be involved in some obscurity, a reference to this Court was made.
3. Alter argument on both sides I agree with the learned Magistrate that the prosecution must fail on one of the points of law to which the Magistrate has adverted. It is, therefore, unnecessary for me to consider the other points raised in the reference.
4. In my opinion the prosecution must fail, because the bye-law under which this prosecution was instituted is beyond the powers vested in the Municipal Corporation under Section 461 of the City of Bombay Municipal Act. We are concerned in the present case with a certain measure known as maplo. It is admitted that this measure is a perfectly honest measure which has been current in the City since August 1915. Now the bye-law of which the infringement has been alleged against the accused runs as follows: I quote only the words which are immediately applicable to the present case: 'No tenant of a shop shall keep at such shop any measure which has not been duly verified by comparison with the standard measure.' That bye-law which affects the keepers of shops in private markets, purports to be enacted under Section 461, Clause (o) of the Municipal Act. This clause empowers the Corporation to make bye-laws not inconsistent with the Act with respect to the matter of preventing the use in any market of false or defective measures. Under Section 418 of the Act it is provided that the Commissioner shall from time to time provide such local standards of measure as he deems requisite for the purpose of verification of measures in use in the city and shall make arrangement for the safe-keeping of the said standards. It is also directed that the Commissioner shall provide from time to time proper means for verifying measures by comparison with the said standards. It is clear, as it seems to me, that under Section 418 a duty is cast upon the Commissioner of recognizing the measures actually current in the city, and his means of ensuring that such measures shall be faithfully followed are limited to the methods set out in that section. The bye-law, however, purports to give the Municipal Corporation or the Commissioner far wider power than that conferred by Section 418. For it purports to empower these authorities to prohibit the use in a private market of any measure, honest or dishonest, provided only that it is a measure which has not been verified. Nor can the bye-law in my opinion be brought within the ambit of Clause (o) of Section 461. For that clause, as I construe it, means no more than that the Corporation shall have power, to pass bye-laws to prevent the practice of fraud by the use of measures which are false or defective with reference to the standard measures assumed to have been verified by the Commissioner as directed in Section 418. But neither under Section 418 nor under Section 461 has the Corporation any such power as they claim to exercise by this bye-law, the power, namely, to say that in the private markets of the City no measure shall be brought into use unless it has already been verified by the Commissioner. Rather the provisions of the Act import that if the Commissioner has reason to suspect any particular measure which is current, his method of controlling it is to verify it as directed under Section 418, and thereafter to secure that the measures of that denomination in use shall correspond with the verified measure. I can find nothing in Section 418 or Section 461, Clause (o) which would justify the Municipality in prohibiting the use of an honest measure in a private market merely on the plea that if the use of that measure were prohibited, it might be easier for the Municipality to ensure that the measures actually in use should not be false or defective with reference to the verified and standard measures. The use of an honest measure of one description cannot be said to facilitate the commission of fraud by the use of-false or defective measures of a wholly different name and description.
5. On this ground I agree with the learned Magistrate that the bye-law of which the infringement is alleged against this accused is invalid under the Municipal Act, in so far as it prohibits the keeping, for use in a private market, of a measure which has been in use in the City but of which no standard has been kept by the Commissioner as required by Section 418. Therefore the prosecution must on this ground fail.
6. Under Section 433 of the Criminal Procedure Code it is open to us to direct by whom the costs of this reference should be paid. But haying regard to all the circumstances we make no order as to costs.
7. I am of the same opinion.