Norman Macleod, Kt., C.J.
1. This is a reference under Section 438 of the Code of Criminal Procedure by the Sessions Judge of Poona in the matter of the conviction of one Naservanji Bomanji by the Cantonment Magistrate of Poona under Section 22 of Bombay Act VII of 1920.
2. The offence charged was that the accused had let his tonga for hire without a license. It would appear from the judgment that the only evidence against the accused was that a Lieut. Flitcroft was found driving in a tonga belonging to the accused and that he stated that he had hired it several times before. The accused said that he had three conveyances which he hired out to such persons as he wished, but contended that they did not become by reason of such user public conveyances. The learned Magistrate had no doubt that the tonga was a public conveyance and required a license, but he ignored entirely the definition of a public conveyance in Section 2 of the Act and based his opinion on grounds which can only be considered irrelevant.
3. Under the Act a public conveyance is a vehicle which is used for the purpose of plying for hire for the conveyance of passengers and goods.
4. The word 'ply' has many meanings. From the Oxford Dictionary I find that the word can be used of a vessel or its master as meaning to go more or less regularly to and fro between certain places, and in the same sense it is used of a land-carriage. It is also used of a boatman, porter, hackman, to mean to wait or attend regularly, to have one's stand at a certain place for hire or custom. Although it may be said that a ship, a boat or a conveyance plies between two named ports or places it seems that the expression 'ply for hire' is more correctly used only with reference to the act of the individual who controls the ship, boat or conveyance. However that may be, the essential idea of a conveyance being used for the purpose of plying for hire is that it should be available at some public place or on some regular route for any one who wishes to hire it or travel by it. This is made clear by Section 26(ii) which says that the driver of a public conveyance cannot refuse without reasonable cause to carry any person desiring to hire the conveyance. There seems to be a very distinct difference between 'letting for hire' and 'plying for hire.' If A keeps motors at Poona in order to let them out to clients who wish to go to Mahableshwar, the motors would not become on that account public conveyances, it would be otherwise if A kept a motor bus which plied regularly between Poona and Mahableshwar. If it is considered desirable that conveyances which are kept for letting out on hire should be licensed, then the Act must be amended. In my opinion, the Sessions Judge was right, the conviction must be quashed and the fine, if paid, refunded.
5. I agree.