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E.S. Ramakrishna Setty Vs. State of Andhra Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Revn. Case No. 537 of 1963 and Crl. Revn. Case No. 482 of 1963
Judge
Reported inAIR1965AP420; 1965CriLJ608
ActsAndhra Pradesh (Andhra Area) Motor Vehicles Taxation Act, 1931 - Sections 4(1) and 5(1)
AppellantE.S. Ramakrishna Setty
RespondentState of Andhra Pradesh
Appellant AdvocateC. Pattabhirama Rao, Adv.
Respondent AdvocateT. Bali Reddy, Adv. for ;O. Chinnappa Reddy, Public Prosecutor
Excerpt:
- - in the defence evidence ,the fact that the lorries ran on the road with in andhra pradesh state was admitted and it was sought to be explained and justified as seen from the following sentence in the judgment (at page 332) :on the other hand, they (drivers of the lorries) have been examined as defence witnesses to show that the petitioner was in calcutta at the relevant period and the drivers had merely taken the route on the return journey as the road was good and there was some saving of distance the route taken by them being admittedly shorter .in this case, also the accused himself gave evidence as d. the explanation offered by the drivers in this connection, as stated above, is that they were proceeding along with this route mainly as the road was good and there was some.....anantanarayana ayyar, j. (1) in c. c. no. 338 of 1962, on the file of the judicial second class magistrate, alur the sole accused, e. s. ramakrishna setty, was charged with an offence under s. 7 of the andhra pradesh (andhra area) motor vehicles taxation act, 1931 (act iii of 1931) hereinafter referred to as the act) namely, that the accused was a registered owner of the lorry myf 7999 and that he had not paid tax of rs. 170-80 np. to the government of andhra pradesh in respect of that lorry. the accused denied the offence and contested the case. after trial, the learned magistrate convicted the accused of the offence and sentenced him to pay a fine of rs. 50/- and in default to undergo rigorous imprisonment for four weeks and also directed him to pay the tax.accused filed criminal appeal.....
Judgment:

Anantanarayana Ayyar, J.

(1) In C. C. No. 338 of 1962, on the file of the Judicial Second Class Magistrate, Alur the sole accused, E. S. Ramakrishna Setty, was charged with an offence under S. 7 of the Andhra Pradesh (Andhra area) motor Vehicles Taxation Act, 1931 (Act III of 1931) hereinafter referred to as the Act) namely, that the accused was a registered owner of the lorry MYF 7999 and that he had not paid tax of Rs. 170-80 nP. to the Government of Andhra Pradesh in respect of that lorry. The accused denied the offence and contested the case. After trial, the learned Magistrate convicted the accused of the offence and sentenced him to pay a fine of Rs. 50/- and in default to undergo rigorous imprisonment for four weeks and also directed him to pay the tax.

Accused filed Criminal Appeal No. 246 of 1962 in the Court of the Sessions Judge, Kurnool. The learned Additional Sessions Judge confirmed the conviction and sentence of the lower court and dismissed the appeal. Accused filed Cri. R. C. No. 537 of 1963 in this Court. When the case came up for hearing before our learned brother, Mohammed Mirza, J., he passed an order as follows :

'This case involves the interpretation of 8. 4 (1) of the Madras Motor Vehicles Taxation Act. Mr. C. Pattabhirama Rao takes his stand on a decision of this Court in Jayaram Shivaji, In re, : AIR1964AP331 wherein it has been laid down that a casual or accidental use of the public road lying in another part of the State would not render the owner part of the state would not render the owner of the vehicle of a neighbouring State to tax under the Motor Vehicles Taxation Act. This view does not commend itself to me and I think it will be proper that this question should be decided by a Bench. Order accordingly.'

Consequently, this case came up before this Bench.

(2) The prosecution case was to the following effect. The Lorry MYF 7999 (hereinafter referred to for convenience as the Lorry ) belonged to the accused and was registered in Mysore State, its route permit being Ex. D. 1. on 26-1-1962 at about 1-50 p.m. the Motor Vehicles Inspector, Adoni checked the lorry and found it plying at a spot represented by 338/5 from Alur-Adoni road. It was an unauthorised route i.e., a root not covered and authorised by the permit (Ex. D. 1 ). Therefore with reference to G. O Ms. No. 5211 Home (Transport II) Department, dated 3rd March 1959 Ex. P. 1) and letter of Mysore Transport authority dated 26-7-1962 (Ex. P. 2) the accused has to pay the tax to the Government of Andhra Pradesh .

(3) The accused raised various contentions of which the following three alone are relevant for the purpose of this proceeding.

1. Whether the lorry was found plying on an authorised route ?

2. If so, whether tax is payable to Andhra Pradesh Government ?

5. Whether prosecution of the accused under S. 42(1) read with S. 123(1) of the Motor Vehicles Act is a bar for prosecution of the accused under section 5 (1) read with S. 7 of the motor Vehicles Taxation Act ?

The learned Magistrate found all the points against the accused . At the time when the case was being tried by the learned Magistrate, a case was pending against the accused under S. 42(1) read with S. 123(1) of the Motor Vehicles Act in C. C. No. 339 of 1962 in the same Court which was also based on the same fact of the Motor Vehicles Inspector having found the accused plying the lorry at Mile No. 338/5 on Alur-Adoni road on 26-1-1962 at about 1-50 p. m. As a result, point No. 5 was framed in the from already extracted. By the time the appeal was being heard by the learned Additional Sessions Judge, the accused had been acquitted in C. C No. 339 /1962. Only one point was argued the accused under S. 5(1) and S. 7 of the Act was barred by acquittal of the accused in C. C. No. 339 of 1962. the learned Addl. Sessions Judge repelled the arguments and decided against the accused on that point.

(4) The Learned Advocate for the petitioner -accused has raised before us the following contentions :-

1. That, on the facts alleged by the Motor Vehicles Inspector, tax was not payable to Andhra Pradesh Government .

2. That this case is barred by acquittal of the accused in C. C. No. 339 of 1962.

Contention No. 2 :- This is the same as the contention which was raised in the lower appellate Court. The learned Addl. Sessions Judge held that the offence concerned in the present case namely, under S. 5(1) read with S. 7 of the Act for non-payment of the tax was distinct and different from the offence under S. 123 of the motor Vehicles Act which was concerned in C. C. No. 339 of 1962 which was for not obtaining a permit. He also pointed out that a man may obtain a permit to run his vehicle on a particular route but, at the same time, he may not pay the tax for a particular quarter which non-payment is a distinct offence. He also relied on Section 26 of the General Clauses Act, 1897 which runs as follows :

'Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of these enactments but shall not be liable to be punished twice for the same offence.'

It has not been shown to us that the learned Additional Sessions Judge was wrong in rejecting the contention raised before him. We see no reason to disagree with the finding of the learned Additional Sessions Judge in this behalf and find that this contention is untenable.

(5) Contention No. 1 : For dealing with this contention the following provisions of the Act are relevant and important.

'Section 4(1) : The state Government may, by notification in the Official Gazette, from time to time direct that a tax shall be levied on every motor, vehicle using any public road in the Andhra Area of the State of Andhra Pradesh .'

Section 5 (1) (a) The tax levied in pursuance of a notification issued under sub-section (1) of section 4 shall be paid by the registered owner at his choice, either quarterly, half-yearly or annually, upon a quarterly, half-yearly or annual licence to be taken out by him. . . . . . . . . . . . . . . . . . . . .

(b) Where the tax for any motor vehicle has been paid for any quarter, half year or year and the vehicle has not been used during the whole of that quarter, half-year or a continuous part thereof not being less than one month, a refund of the tax at such rates as may from time to time, be notified by the state Government, shall be payable . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . ..

(d) No motor vehicle shall be used on any public road in the Andhra area of the State of Andhra Pradesh at any time after the issue of a notification under sub-section (1) of S. 4, unless a licence permitting such use during such time has been obtained under clause (a) or clause (c).

:Section 7. If the tax due in respect of any motor Vehicle has not been paid, the registered owner shall be punishable.'

Beyond doubt, the accused did not obtain taxation licence under S. 5 (1) (a) or Section 5 (1) (c).

The relevant portion of Ex. P. 1 runs as follows.

Notification 1. 'In exercise of the powers conferred by subsection (1) of section 11 of the M. M. V. T. Act 1931 (Madras Act III of 1931), the Government of Andhra Pradesh here by exempts all stage carriages, the public carriers and private carriers registered in the state of Mysore and operating on a route which lies both in the state of Mysore and in the State of Andhra Pradesh , from the payment of the tax leviable under the said Act :

Provided that -

i. the route is recognised by both of the said States to be such a route;

ii. every such motor vehicle is operating in accordance with the conditions of a permit granted as a result of an agreement arrived at between both of the said states ;

iii. the tax leviable in respect of every such motor vehicle under any law for the time being in force in the State of Mysore has been paid in that State.

2. This notification shall be deemed to have come into force on the 1st day of April 1959.'

(6) The finding of the trial Court on the first point namely, whether the lorry was found plying of fact based on evidence and it was that the accused was plying the lorry on a route which was not covered by the permit (Ex. D-1) State territory. ordinarily the accused would be liable to pay tax to the Government of Andhra Pradesh if his vehicles used the public road for the purpose of S.4(1) and S. 5 of the Act He need not pay the tax if he is entitled to the benefit of exemption contained in the G. O. No. 521 of 1959 (Ex. P. 1) but he will not be entitled to such benefit if he did not comply with the requirements in the G. O. namely, plying on the route mentioned in the permit. The finding by the trial Court on Point no. 1. as numbered by it was a finding of fact. That finding was not challenged in the appeal (C. A No. 246 of 1962) before the Additional Session Judge. It has also not been contended before us that that finding is wrong. We proceed on the basis that the finding is wrong. We proceed on the basis that the finding on point no. 1 as framed in the trail Court is correct.

(7) In : AIR1964AP331 the relevant facts were as follows : Four lorries belonging to the petitioner Jayaram Shivaji were found carrying some empty drums and furniture on road within Srikakulam District in Andhra Pradesh State at Mile 554/3 on 21-12-1960 though the lorries had no permit under S. 42 or temporary permit S. 62 of the Motor Vehicles Act and though they had no licence for using the road under the Act. Various contentions were raised. In the defence evidence , the fact that the lorries ran on the road with in Andhra Pradesh State was admitted and it was sought to be explained and justified as seen from the following sentence in the judgment (at Page 332) :

'On the other hand, they (drivers of the lorries) have been examined as defence witnesses to show that the petitioner was in Calcutta at the relevant period and the drivers had merely taken the route on the return journey as the road was good and there was some saving of distance the route taken by them being admittedly shorter .'

In this case, also the accused himself gave evidence as D. W. 1 and his evidence is referred to in the judgment of the trial Court as follows :

'The accused examined himself as D. W. 1 He stated that Adoni-Alur Guntakal road is a trunk road and that the shortest route from the Adoni to Bangalore is via Alur, Guntakal, Gooty, Anantapur and Hindupur. . . . . . . . . .'

Thus, the plea in that case and in this case was not to the effect that the lorry run on the road in Andhra Pradesh State by way of accidental running or without intention or without knowledge that the portion of the road was in Andhra Pradesh State and was not covered by the permit concerned - in the present case Mysore State permit, Ex d. 1 Our learned brother, Sharfuddin Ahmed, J., observed as follows (at Page 332) :

' The conviction of the petitioner under section 7 of the Motor Vehicles Taxation Act is based on the fact that the vehicles were found plying in the Andhra Pradesh area on that particular date. The explanation offered by the drivers in this connection, as stated above, is that they were proceeding along with this route mainly as the road was good and there was some saving of distance. It does not seem to be the case of prosecution that the vehicles were being constantly plied in the area lying within the State of Andhra Pradesh. Under S. 4 of the Motor Vehicles Taxation Act, the Government is empowered to direct that the tax should be levied on every motor vehicle using any public road in the State. The question is whether the vehicles were liable to pay the tax even if it was found as a matter of fact that it was for the first time that the vehicles had entered the area lying within the State of Andhra Pradesh . As stated above, it is not the case of the prosecution that the vehicles were regularly plied in the area with in Srikakulam District or on their route to their destination in Orissa they had to constantly pass through the District of Srikakulam. The Regional Transport Officer has not spoken in this regard. The prosecution seems to be based only on the footing that, on the particular date, the vehicles were found on the road which lied with in the district Srikakulam. I find it difficult to hold that it amounts to using of public road as contemplated under Section 4 of the Motor Vehicles Taxation Act.

The appellate Court and so also the trial Court do not seem to have adverted to this aspect of the case viz., whether the use of road once or twice amounts to using any public road as provided in S. 4 of the Motor Vehicles Taxation Act. No authority has been cited to show that even a casual or accidental use of the public road lying in another part of the State would render the owner of the vehicle of a neighbouring State to tax under the Motor Vehicles Taxation Act.'

In effect the view of our learned brother was that motor vehicle can be said to be using . . . . . . . . . Public road, for the purpose of S. 4 of the only if it plied on the road constantly or regularly but not when it was found as a matter of fact, that it was for the first time that the Vehicle had entered the area lying within the State of Andhra Pradesh or when there was casual or accidental use of the public road. This amounts in effect to adding the words 4 of the Act.

In this case, there is no occasion or necessity to consider the question as to whether an offence under S. 5(1) read with S of the S. 7 Act would be committed if the use of the lorry was accidental. The presence of the lorry on the Alur-Adoni road was an incident and not an accident as seen from the facts of the case and the findings of the trial Court which has not been challenged. The same was the position in the case concerned in : AIR1964AP331 . Our learned brother himself used the words 'casual use' at the end of Para & of his judgment implying that running a lorry on the road was use of the road. In effect our learned brother interpreted the meaning of the words using . . . . . . any public road' by adding words 'constantly or regularly' as mentioned above.

(8) In Cape brandy Syndicate v. Inland Revenue Commissioners, 1921-1 KB 64 Rowlatt, J., observed as follows (at page 71) :

'The respondents' contention involves an extremely artificial construction of the words and imports into the expression 'pre-war standard' something having no connection with anything to which the term 'pre-war' can properly be employed. It is urged by Sir William Finally that in a taxing Act clear words are necessary in order to tax the subject. Too wide and fanciful of construction is often sought to be given to that maxim which does not mean that words are to be unduly restricted against the crown or that there is to be any discrimination against the Crown in those Act. it simply means that in a taxing Act one has to look merely at what is clearly said. There is no room for any intendment . There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used.'

The principle has been quoted with approval in Maxwell of the interpretation of the Statutes (1962 Edition) at page 278.

(9) The learned Public Prosecutor relies on the decision of the Supreme Court in Jivabhai v. Chhagan, : [1962]1SCR568 . In that case, it has been held as follows (at page 1494) :

'. . . . . . . . If there is any doubt about the meaning of sub-section (2-A) that doubt should be resolved in favour of the tenant, for whose benefit the amending Act (No. 33 of 1952) was passed . . . . . . . .. .. . . .' (amending Bombay tenancy and Agricultural Lands Act No. 47 of 1948 by which sub-section 2-a was added to S. 34 by which certain further restriction were placed on the right of the landlord to terminate the tenancy of a protected tenant.)

In this case, we have to see whether there is room for any doubt about the meaning of the words 'using any public road' in S. 4(1) of the Act.

(10) In state of Bombay v. A and A Industries Corporation, 1961-12-STC 122 (SC) it was observed by their Lordships of the Supreme court as follows (at p. 125) :

'Sub-section (2) of section 21 Sales-tax Act III of 1953) is a penal provision contained in a taxing statute and the Court cannot speculate contrary to the plain intendment of the words used about the object of the Legislature. It the Legislature has failed to clarify its meaning by the use of appropriate language, the benefit thereof must go the tax payer . It is settled law that in case or doubt, that interpretation of taxing statute which is beneficial to the tax - payer must be adopted.

If it were found that the legislature has not used appropriate language in S. 4 (1) of the Act and has failed to clarify its meaning and consequently if there were any doubt, then certainly, interpreting S. 4 (1), that interpretation should be adopted which would be beneficial to the tax-payer.

(11) In additional collector of Sales tax v. Manilal Keshavji 1962-13 STC 624 (Bom) the learned Judges of the Bombay High Court referred to the above principle laid down in 1961-12 STC 122 (SC) as well as the principle laid down in Maxwell on the Interpretation of Statutes (1962 Edition) at page 278 and proceeded to find out, on the relevant material of the case before them, whether there was any failure on the part of the legislature to clarify the meaning by use of the appropriate language. We have also got to do the same here.

(12) Learned Advocate for the Petitioner relies on the decision in In re. T. V. Moidu, AIR 1960 Mad 265. The relevant facts of that case were as follows (at P. 266) :

'The public transport vehicle lorry KLD 390, has got a permit to ply from Kundah to Ootacamund. But the route is via Korakundah and not Selas. On 25-7-1938, KLD 390 was found being driven by the driver Moidu at that time, on a trip totally unconnected with its use under the permit granted to it, at Selas Bazar. It is admitted that via Selas is the shortest route to Ootacamund from Kundah. The driver Moidu and the owner Ayyapan have been charge-sheeted for an offence under S. 42(1) read with Section 123 of the motor Vehicles Act and under R 226 of the Motor Vehicles Rules read with Section 112 of the Motor Vehicles Act. Both of them were convicted and fined. Hence these revision cases.'

The learned Judge observed as follows (at page 266) :

'The Motor Vehicles Act, in connection with the travelling of a vehicle makes a sharp distinction between driving a vehicle, being in charge of the vehicle, and using the vehicle . . . . . . . The word 'using' does not mean the same thing as driving or being in charge of the Motor vehicle. The word 'use' connotes that the travelling or stationery vehicle at the time when it becomes the subject-matter of a delictum was at the place where it is found in the course of its user in accordance with the permit granted to it and which has been defined above'

The learned Judge referred to the meaning of the word 'use' in various Dictionaries. He held that the provisions of S. 42 and S. 123 of the Motor Vehicles Act had not been offended in view of the following facts; firstly the lorry was not found at Selas even in any manner remotely connected with its plying on business . secondly the lorry driver had taken the Selas route because it was the short cut route to Ootacamund; and thirdly, the lorry was as a matter of fact found empty showing that it was not going about on business for which the permit had been used. The learned Judge held, after considering the provisions of law, as follows (at page 267)

'The net result of this analysis is that Section 42(1) has to be read as follows : 'No owner of a transport vehicle shall use or permit the use of the vehicle shall use of permit the use of the vehicle as a transport vehicle in any public place.'

In effect, the learned Judge has added the words underlined (here in single inverted commas) by us above in interpreting the statutory provision in S. 42(1) of the motor Vehicles Act presumably on the ground that the language used in S. 42(1) is not clear or plain and that the Legislature had failed to clarify its meaning by the use of appropriate language. We do not find any need to express any opinion about the correctness of the above view or decision because the relevant facts of this case are very different from the facts of that case in material particulars.

It is true that , in that case also, the lorry driver had taken the Selas route because it was a short cut just as in this case, D. W. 1 contended that the Adoni-Alur-Guntakal route was a short-cut But that facts was not the sole basis or crucial fact on which the decision was given. Further in that case, it was also found that the lorry was not found even in any manner remotely connected with its plying on business and it was also found to be empty. In the present case, there was no such findings of fact. Consequently, even assuming, without admitting, that the decision of the Madras High Court in AIR 1960 Mad 265, which was by a single Judge passed on 24-9-1959 and is not binding on this Court, is right, it would not be helpful to the petitioner on the facts of the instant case.

Further , in this case, we are not concerned with an offence under S. 42(1) of the Act but with an offence under S. 7 of the Act. Even in the above Madras decision, it was held in effect that there was use of the vehicle in public place but it was also held that such use was not use as a transport vehicle.

(13) The question of any offence under the Act did not arise for consideration and was not considered in the Madras case, The road on which the lorry was found was a road within the limits of Madras State & the route for which the permit was issued that is, authorised route, was also within Madras State. If tax has been paid for the authorised route as transport vehicle to the Madras State, the plying on Selas route even as a transport vehicle would not amount to use of public road of Madras State without payment of tax to Madras State for the purpose of S. 4 of the Act whether it amounted to an offence under S. 42(1) and S. 42(1) and S. 123 of the Motor Vehicles Act.

In this case, the road on which the lorry implied was within Andhra Pradesh Government and no tax had been paid to the Andhra Pradesh Government on the permit for plying on public roads of the Andhra Pradesh State. Of course, if the lorry had plied on the authorised route shown in the permit (Exhibit D. 1) issued by the Mysore State, the petitioner accused would be exempt from paying tax to the Andhra Pradesh Government in view of the exemption provided in Ex. P. 1 and Ex. P. 2 but once the lorry tool a route which was not the authorised route, he was not entitled to the benefit of the exemption under Ex. P. 1 and Ex. P. 2 on facts, it cannot be held that the accused was using the vehicle in any way other than as a transport vehicle in any way other than as a transport vehicle that is, a public carrier as mentioned in the permit (Ex. D. 1). Therefore, the decision in AIR 1960 Mad 265 does not apply to this case and does not help the petitioner accused .

(14) In AIR 1960 Mad 265 the relevant question was the use of the vehicle by owner for the purpose of S. 42(1) of the Motor Vehicles Act. For the purposes of S. 5(1) of the Act, we are concerned with the question whether the vehicle used the road. The meaning of the word 'use' as found in the various Dictionaries, as extracted in AIR 1960 Mad 265 (supra) are as follows :

Murray's New English Dictionary : 'This act of employing a thing for any (esp. a profitable) purposes : the fact, state, or condition of being so employed ; utilisation or employment for or with some aim or purpose, application , or conversion to some (esp. good or useful) end.

To ply or carry on (an occupation, profession etc); to follow or exercise; to discharge the functions of (an office). To make use of (some immaterial thing) as a means of instrument to employ for a certain end or purpose.'

Funk and Wagnalls' New Standard Dictionary : 'To employ for the accomplishment of a purpose ; turn to account; make use of :'

Webster's International Dictionary of English Language : 'Law that enjoyment of property which consists in its employment occupation exercise or practice.'

Stround's Judicial Dictionary : 'A steam roller crossing one county in order to do work in another is, whilst passing over highways in its journey, being used with in S. 32 Highways and Locomotives (Amendment) Act. 1878'.

(15) A vehicle like motor lorry running on wheels is intended, designed and constructed by the maker for being run on roads and is maintained by the owner and operator in a worthy condition. Roads like Alur- Adoni road have been intended, designed and constructed and are maintained by the State for vehicles being run on them i. e. in a motorable road. Vehicle and road are meant for each other, In particular, motor vehicle and motorable road are meant for each other. Vehicle and road together serve the travelling public. The normal use of a road like Alur-Adoni road by a vehicle is by the latter plying on the road. When a lorry runs on that road, it employs the road for a certain obvious purposes i. e. going from one place to another and covering the distance from one place to another and it certainly uses the road. Such use is what is contemplated, covered and provided for in section 4(1) of the Act, by the words 'motor vehicle using . . . . any public road.' Accordingly, the vehicle certainly used the road on 26--11962 when the Motor Vehicles Inspector saw it running (Plying) on the Alur-Adoni road.

We find that the meaning of the words in section 4 (1) of the Act, is plain and free from doubt. As per the various decisions referred to by us earlier, there is no scope in the present case for adding any words to the statute as expressed in section 4(1) of the Act and that in particular, it is not permissible to interpret the words as meaning that the vehicle should use the Alur-Adoni road regularly should use the Alur Adoni road regularly or constantly or that its use of the road should be not merely once or twice and not mere causal use nut some thing more for the purpose of attracting the application of s. 4(1) of the Act. We respectfully disagree with the interpretation made by our learned brother Sharfuddin Ahmed, J. in : AIR1964AP331 and hold that the facts proved in the lower Court that the lorry plied on the Alur-Adoni road on 26-1962 namely, an unauthorised route amounted to use of the public road.

(16) Learned advocate for the petitioner accused contended that tax was payable only if it ran for a considerable period like a quarter or half year and not for a causal use on one day or on one occasion. Section 5(1) of the Act. prescribes payment of the tax at the choice of the owner either quarterly or half yearly or annually. But S. 5 (1) (d) of the Act lays down clearly that licence should be obtained by payment of tax prior to using the vehicle on the public road if the use is to be not contrary to law. Section 5(1) (b) also lays down a condition for refund of tax for any period during the term for which tax has been already paid (Quarterly, half yearly or year) ; the refund would be payable for a period only if the vehicles had not been used during the term for which tax had been already paid in the advance if that period was continuous and less than one month. Therefore, the contention of the learned advocate for the petitioner is untenable.

(17) In the result, we find as follows ;

The findings of fact of the both the lower courts, with which we agree, is sufficient to show that the petitioner used the public road which was not covered by the permit (Ex. D. 1.) on 26-1-62 This amounted to use of the public road for the purposes of S. 4(1) and attract the provisions of S. 5(9) of the Act it is sufficient if there is plying of vehicles, even if such plying is casual and not usual. Such use of the Road need not be regular and constant or more than once or twice for the purpose of coming under S. 4(1) and S. 5(1) of the Act. . In this respect, we respectfully differ from the view of our learned brother. Sharfuddin Ahmed J in : AIR1964AP331 . The first contentions is not tenable.

(18) the conviction is right. the sentence is not excessive. We confirm the conviction and sentence and dismiss the revision petition .

(19) Petition dismissed.


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