1. The original accused Babubhai Prabhudas Modi has filed this revision application against his conviction by the learned City Magistrate, Tenth Court, Ahmedabad, for the offence under S.. 131A of the Bombay Police Act, 1951 hereinafter to be referred as the Act in that he had kept his tea-kettle in a four-wheeled hand cart and served tea to customers without a licence. The learned City Magistrate has imposed a sentence of fine of Rs. 10 only and in default of payment of fine ordered the accused to under go simple imprisonment of five days. Even though the amount of fine is small, the accused has filed this revision application in the nature of a 'test case' and in view of the importance of this matter which involves a question of interpretation of the definition of the term 'place of public entertainment' in S. 2(10) of the Act, this matter has been referred to a Division Bench and that is how it has come before us.
2. The case of the prosecution was that on 21 June, 1966, the accused kept his tea-kettle in a four-wheeled hand-cart and served tea to the customers without obtaining a licence under rules issued under S. 33(1)(w) of the Act and he had thereby committed an offence punishable under S. 131A of the Act. The accused pleaded not guilty to the said charge. His defence was that he had not kept any 'place of public entertainment' and, therefore, no licence was necessary for his four-wheeled hand-cart where he kept his tea kettle and he had, therefore, committed no offence whatsoever. The learned City Magistrate relied on the definition of the term 'place' in S. 2(8) of the Act and held that as it was very wide to cover even the buildings or open place, such a vehicle which occupied a 'place' was covered under S. 33(1)(w) and such a 'place' could be regulated by licensing rules. Accordingly, the learned City Magistrate held that the accused having kept his four-wheeled handcart containing tea-kettle, without a licence and as he served tea to the customers, without a licence, the prosecution case was proved and he convicted the accused. The accused had challenged his conviction in this revision application.
3. With great respect to the learned City Magistrate, he has decided the entire matter on the definition of the term 'place' under S. 2(8) of the Act without even making any reference to the special definition of the term 'place of public entertainment' in S. 2(10) of the Act, with which we are concerned. Section 33(1)(w) of the Act provides that the Commissioner and the District Magistrate, in areas under their respective charges or any part thereof, may make, alter or rescind rules or orders not inconsistent with this Act for -
'(i) licensing or controlling places of public amusement or entertainment,
(ii) prohibiting the keeping of places of public amusement or entertainment or assembly, in order to prevent obstruction inconvenience, annoyance, risk, danger or damage to the residents or passengers in the vicinity, and
(iii) regulating the means of entrance and exit at place of public amusement or entertainment or assembly, and providing for the maintenance of public safety, and the prevention of disturbance thereat.' It will be noted at this stage that under S. 33(1)(c) such rules can be made for regulating the conditions under which vehicles may remain standing in streets as public places, and the use of streets and halting places for vehicles or cattle. Under the definition of the term 'vehicle' in S. 2(17) a 'vehicle' means any carriage, cart, van, dray, truck, hand cart or other conveyance, etc., or under S. 33(1)(c) regulations could have been made for a hand-cart which remains standing in the streets and public places, and for regulating the use of streets as halting places for such hand-carts. In the present case, the charge against the accused is not for breach of any such regulations for halting of a vehicle. The charge against the present accused is only under the rules made under S. 33(1)(w) in that he had not obtained a licence for keeping a 'place of public entertainment.' That is why, what is important for our purpose is to look at the definition of the term 'place of public entertainment' and not the definition of the term 'place' by itself, because the licensing regulations can be made under S. 33(1)(w) only for licensing a 'place of public entertainment' and not merely any 'place' as such. The term 'place of public entertainment' is defined in S. 2(10) of the Act : ''Place of public entertainment' means any place to which the public are admitted and where any kind of food, or drink is supplied for consumption on the premises by any parson owning or having an interest in or managing such place and includes a refreshment room, eating-house, coffee house, liquor-house, boarding-house, lodging house, hotel, tavern or wine, beer, spirit, arrack, toddy, ganja, bhang or opium shop or a shop where any kind of food or drink is supplied to the public for consumption in or near such shop.'
If we analyse this exhaustive definition, it not only defines what the term 'place of public entertainment' means, but by an extension seeks to include even other places mentioned in the latter part of this clause. The place contemplated in the main part which defines this term 'place of public entertainment' is only that place which satisfies the following two tests :
(i) to which the public are admitted, and
(ii) where any kind of food, or drink is supplied for consumption on the premises by any person owning or having an interest in or managing such place.
Therefore, it is clear from this main definition that a place becomes a 'place of public entertainment' only if the public are admitted to that place and are supplied by the person owning, having interest therein or managing such place, any kind of food or drink for consumption on the premises itself. Therefore, there cannot be any doubt, so far as the main definition is concerned, that 'premises' element is a must and the entertainment of the public must be by supply of food or drink for consumption on such premises. As far as the inclusive part is concerned, it is the settled rule of interpretation that these inclusive words are by way of an extension of the main definition and they make the definition more extensive by including categories of places of public entertainment, which clearly would not have fallen in the main definition clause. This inclusive portion includes a refreshment room, eating-house, coffee-house, liquor-house, boarding-house, lodging-house, hotel, tavern, as they are included specifically in this definition of a 'place of public entertainment.' Thereafter, there is a further inclusive clause which includes shops of certain categories, namely, wine-shop, beer-shop, spirit-shop, arrack-shop, toddy-shop, ganja-shop, bhang-shop or opium shop, and further a general category of shops 'where any kind of food or drink is supplied to the public for consumption in or near such shop.' It is not necessary for us in the present case to consider whether the limitative words 'where any kind of food or drink is supplied to the public for consumption in or near such shops' govern all these shops or only a shop in the residual category. We are at present concerned only with the residual category as the contention of the learned Assistant Government Pleader is that this mobile tea shop falls under this part of the definition. Tea being an article of drink which is supplied to the public, it is contended that as it is supplied for consumption to the public in or near such mobile shop, the said shop falls within this inclusive definition, even though there are no fixed premises for this tea-shop and the whole business of selling tea is carried on only from this four-wheeled hand-cart, We have, therefore, to consider whether the element of 'premises' is not a must in so far as this residuary clause of 'any shop where any kind of food or drink is supplied for consumption to the public in or near such shop' is concerned. The element of 'premises' as we have seen, was present in the main definition. It is also present in that part of the inclusive definition, in which various specific categories of places are mentioned, namely, refreshment room, eating-house, coffee-house, liquor-house, boarding-house, lodging house, hotel, tavern etc. When, however, inclusion is made of other shops, it is the contention of the learned Assistant Government Pleader that the element of 'premises' need not be present in cases of such shops.
4. The expression 'shop' as per its ordinary dictionary meaning, except in the context where it means a workshop, means a place where goods are sold by retail. It is ordinarily used to describe a place or premises set apart for sale of articles by retail. Shops also mean places where instead of goods being sold, services are supplied, like a barber's saloon a washerman's place, etc. In any event, the expression 'shop' always has an element of 'premises', i.e., some definite premises where the public would get goods or services on certain payments. Therefore, even though, in the dictionary definition, the term 'place' is used to describe the shop, a shop has always the element of 'premises' present as it is not any place, but the place where goods are sold by retail or a definite business place. Even in the Bombay Shops and Establishments Act, 1948, in S. 2(27) the expression 'shop' has been defined in the same sense. This definition of the term 'shop' in the Bombay Shops and Establishments Act, 1948, had come up for interpretation before their lordships of the Supreme Court in the case of Kalidas Dhanjibhai v. State of Bombay [1954 - II L.L.J. 694]. A question had arisen in connexion with a small establishment situated in Ahmedabad, known as 'Honesty Engineering works.' The owner employed three workers and did business in a very small way by going to certain local mills and collecting orders from them for spare parts which were manufactured in that workshop and delivered to the mills. There was no buying or selling done on the premises of Honesty Engineering Works and the question had arisen whether it was a 'shop' within the meaning of S. 2(27) of the Bombay Shops and Establishments Act, 1948, which was in the following terms at p. 695 :
''Shop' means any premises where goods are sold, either by retail or wholesale or where services are rendered to customers, and includes an office, a store-room, godown, warehouse or work place, whether in the same premises or otherwise, mainly used in connexion with such trade or business but does Lot include a factory, a commercial establishment, residential hotel, restaurant, eating-house theatre or other place of public amusement or entertainment.'
So far as the main definition clause was concerned, it related to premises where goods are sold, and so, their lordships held that it was rightly admitted that the main portion of the definition, which related to 'premises where goods are sold,' could not exclude the 'premises' element and that unless there were premises on which goods were sold, the main portion of the definition could not apply, e.g., in the case of a street howker or of a man who toted his goods from house to house and sold them at the door. There after, at p. 695, their lordships further considered the contention whether the main definition was extended by the inclusive clause and whether the use of the expression 'work-place' in the inclusive clause shifted the emphasis which was on the premises to the nature of the business, so that wherever there was a business of selling, any 'work place' wherever situate, 'mainly used in connexion with it' would always fall within the definition. Their lordships held that the inclusive clause merely linked on the main definition ancillary place, such as store rooms, godowns, work places, etc, which were mainly used in connexion with the 'business'; and 'business' meant the kind of business defined in the earlier part of the definition. That is to say, not business in general, nor even the business of selling in general, but that portion of the business of selling which was confined to selling on some defined premises. Therefore, even when such an artificial definition with such inclusive clause was construed. In view of the user of the expression such trade or business, their lordships help that the element of 'premises' must be satisfied by that place to come under the definition of 'shop' in S. 2(27) of the Shops and Establishments Act. As in the case before their lordships there was no business of sale on any definite premises, it was held that Honesty Engineering Works was not covered by the Bombay Shops and Establishments Act.
5. In the case of Ardeshir H. Bhiwandiwala v. State of Bombay [1961 - II L.L.J. 77], their lordships had to consider the expression 'premises' in the context of the definition of a 'factory' in S. 2(k) of the Factories Act, 1948 as the question had arisen before their lordships whether the salt works which was carried on in open land would amount to a 'factory.' The definition of a 'factory' in S. 2(k) is any premises, including the precincts thereof, provided, other conditions regarding the number of workers and manufacturing process were satisfied. Their lordships held at p. 79 that the expression 'premises' was a generic term which meant open land or land with buildings or buildings alone. Their lordships considered the other provisions of the Act and even the word 'place' in S. 85 which empowered the State Government to apply the Act to any place wherein a manufacturing process was carried on with or without the aid of power or was so ordinarily carried on, notwithstanding certain matters mentioned in the section. The word 'place' was again a general word which was applicable to both open land and to buildings and in that view, even the sale works carried on in the open land was held to be a 'factory' as it had the element of 'premises.' In the present case, as we have already analyzed the definition in S. 2(10), both in the main definition and in the specific categories in the inclusive clause, we have found that the element of 'premises' is a must. Even in the residuary clause where various shops are specified or even a general shop is included for supply of any kind of food or drink to the public for consumption, in or near such shops, the element of 'premises' must be present, and there is no reason why this element must be treated as absent. In fact, the very use of the limitative words 'where any kind of food or drink is supplied to the public for consumption in or near such shop,' would definitely indicate that the shop must have some definits premises, in or in the vicinity of which, the public must be supplied entertainment by way of food or drink and in that case alone, the shop in question would amount to a 'place of public entertainment.' Thus there is intrinsic evidence even in this inclusive clause itself, which would negative a wide interpretation as suggested by the learned Assistant Government Pleader that the element of premises in totally absent so far as this residuary clause of such a general shop is concerned. There is another important reason which would lead to the same inference. It the legislature intended to make the explanation as wide as possible, so as to cover any place at or near which food or drink was supplied to the public, it would have used the expression 'place' instead of the term 'shop' in this residuary general clause, dealing with shops, because the term 'place' in S. 2(8) of the Act, has an inclusive definition which includes a building, a tent, a booth or other erection, whether permanent or temporary or any area whether enclosed or open. Thus there is intrinsic evidence provided by the statutory dictionary itself. Even if it was a case where two interpretations are said to be possible, by interpreting the term 'shop' in a general manner, not as fixed premises where the sale or supply of articles of food or drink is being done, but as any place without any fixed premises, we cannot accept such a wide construction for various reasons. We must keep in mind that we are dealing with a licensing provision, which seeks to impose a reasonable restriction by putting a fetter on the fundamental right of a citizen to carry on his trade or business of selling certain articles in his shop. If such a mobile shop was sought to be included, it would mean that all the hawkers or wheel-cart vendors, who move from place to place and street to street or the basketwalas, who go on toting door to door for carrying on their business, could not carry on their business without getting a specific licence to carry on their trade. In fact, there would be a great difficulty in roping in such mobile shops as they have no place for setting up their business. There would be nothing to licence as a 'place of public entertainment.' No doubt, they would have a vehicle which moves from place to place and in that sense, their mobile shop occupies some space as it moves from place to place. There would, however, be nothing fixed by way of premises where any business shop is established, which could be licensed specifically and regulated under this Police Act. It must be further kept in mind that S. 131A(1) provides for conviction of a person who fails to obtain a licence under this Act in respect of a 'place of public entertainment.' It also provides under Sub-section (2) that it shall be obligatory on the Court trying any such offence to direct in addition that the person keeping a 'place of public entertainment' in respect of which the offence is committed, shall close such place until he obtains a licence or a fresh licence, as the case may be, in respect thereof and thereupon such person shall comply with such direction. Thus S. 131A not only provides for conviction for not obtaining a licence for keeping a 'place of public entertainment,' but it provides for a mandatory direction to be given by the Magistrate trying such offence requiring such person to close down his place of business until he obtains a licence or a fresh licence, as the case may be, in respect thereof. The provision, therefore, which we are to interpret is a licensing provision putting a fetter on the fundamental rights of a citizen to carry on his business and, therefore, such provision would have to be strictly construed. It is also a settled rule of construction that the penal statute should be strictly construed without straining the meaning of the words used and whenever there is any doubt, it should be resolved in favour of the subject, for none can be put on peril on an ambiguity in criminal law. Therefore, we must find out whether on a strict construction the provision regarding the licence is strictly applicable to a mobile vehicle by reason of its being a 'place of public entertainment.' The only category relied upon is a residuary category of the shop and, therefore, unless the mobile vehicle comes strictly within the definition of the term 'shop', it cannot be held that it falls within the scope of this provision. Such a restriction would have to be strictly construed so as to confine the restriction within the four corners of the provision and only to the extent it is clearly laid down therein. There would be no room for intendment and we would not read anything in the statutory provision or imply keep anything which is not there. Even if we keep in mind the context and setting of this provision in this Police Act, which provides for such licensing of a 'place of public entertainment' for reasons of maintaining public order or public safety, we cannot come to any different conclusion. The object of licence is not to see to the health or welfare of the public by regulating the quality of foodstuffs supplied to the public for consumption as in the case of municipal legislation. What is sought to be regulated is not the activity of sale of articles of food or drink, in or in the vicinity of such shop as such, but what is intended is to license the 'place of public entertainment' after the police authorities are satisfied that such a 'place' is suitable for the purpose and the person, who is issued a licence as a keeper of the 'place' is a suitable person in the opinion of the police authorities.
6. If we turn to the licensing rules which are framed in this connexion under S. 33(1) of the Act, under Cls. 33(1)(w) and 33(1)(y), which relates to the procedure, it is also clear that no such wide construction can be intended. Rule 1 provides that
'no person shall open or keep a place of public entertainment, unless he holds a valid licence granted under these rules.'
Rule 2 provides that
'no licence to open or keep a place of public entertainment shall be granted to any person applying for such licence unless he satisfies the licensing authority :
(i) that he is a suitable person for holding the licence,
(ii) that the locality and the place or premises where he proposes to open or keep the place of public entertainment are suitable for the purpose;
(ii) that the means of entrance and exit to and from the place are convenient, easy of access adequate and satisfactory;
(iv) that keeping of a place of public entertainment at the place proposed to be used for the purpose is not likely to be used for the purpose is not likely to cause obstruction, inconvenience, annoyance, once, risk, danger or damage to this residents or passengers in the vicinity thereof; and
(v) where the place of public entertainment is proposed to be opened in any enclosure, building tent, booth or any other erection, that arrangement regarding ventilation and precaution against fire are adequate and suitable.'
Thereafter, rule 7 provides
'every person who has been granted licence under these rules shall comply with the provisions of the Bombay Shops and Establishments Act, 1948, and the rules made thereunder in so far as they apply to him.' Rule 8 provides that
'no person keeping a place of public entertainment shall keep it open except during such hours as may be specified is his licence :
Provided that if on any of the following occasions, the provisions of the Bombay Shops and Establishments Act, 1948, as respects closing hours are suspended under S. 6 of the said Act, in respect of places of public entertainment or class of such places, a licensee of such place may keep his place open up to such hours on the occasions as may be notified by the Commissioner of Police in that behalf.'
Finally, even the form of the hotel licence annexed, in appendix, requires description of the place licensed as such, to be given therein, with its house number and other details.
7. Thus, these provisions of the licensing rules leave no doubt that the places of public entertainment sought to be licensed by these rules, are places having definite premised which are considered by the police authorities to be suitable for the purpose, with proper entrance, exit and other facilities and whose keeper is a person suitable in the opinion of the police authorities to keep such a place as a 'place of public entertainment.' In fact, rules 7 and 8 specifically contemplate the application of the provisions of the Bombay Shops and Establishments Act, 1949, to such places of public entertainment in so far as they are applicable, Rule 7 casts a mandatory duty to comply with these provisions on the licensee, and that rule itself would leave no doubt in our mind that a shop which can amount to a 'place of public entertainment' must be a 'shop' within the meaning of the Bombay Shops and Establishments Act, 1948, and which definition, as interpreted by their lordships of the Supreme Court in Kalidas case (1954 - II L.L.J. 694] (vide supra) as aforesaid must have an element of 'premises.' It is true that ordinarily the main statutory provisions cannot be construed by reference to the rules, for in case of conflict it is the rules which have to give way as they would be ultra vires or beyond the scope of the statutes. Where, however, the contravention alleged is of the rule and the rule is not said to be ultra vires and when we have come to the conclusion that the statutory provision and the rules are consistent, we would be fortified in our conclusion by reference to these rules which leave no doubt whatsoever that only a narrow interpretation is intended or the term 'shop' in the definition given in S. 2(10) of the Act of the 'place of public entertainment.'
8. We were referred to certain English decisions where such mobile vehicles with no fixed location and position have been held not to be 'shops,' in the sense of as a place where any retail trade is carried on. In the case of Eldorado Ice Cream Company, Ltd. v. Clark and Eldorado Ice Cream Company, Ltd. v. Keating [(1938) 1 K.B. 715], Lord Hewart, C.J., had to consider a question whether a movable box-tricycle, which sold to public by retail ice-cream stored therein was a 'shop' inasmuch as it was a warehouse 'open for serving of customers' within the meaning of S. 11 of the English Shops Act, and that in any case, it was a 'shop' within the extended meaning of S. 13 which applied that Act, 'to any place where retail trade or business was carried on.' Both the contentions were negatived at p. 721 as the movable barrow was used only as a place to store ice-cream and was a mere storing place and there was nothing in that Act which brought it within the scope of a 'warehouse.' Even the sale by retail from that box-tricycle was not at any fixed place, but at the movable barrow and so, it would not fall within the definition of the term 'shop.' At p. 722, Lord Hewart, C.J., observed that throughout those sections one found words which connoted defined and fixed locality and position and even the form of record of Sunday employment and holidays to be kept under S. 12 of the Act provided that the address of the shop or place should be stated. His lordship suggested a query as to what would be the address of the box-tricycle. Thereafter, his lordship pointed out that it would be wrong to treat as synonymous the expressions 'box-tricycle is a place' and 'the box-tricycle is at a place.' This decision was followed in Stone v. Boreham [(1958) 2 All E.R. 715] by Lord Goddard, C.J., in case of a mobile van, equipped as shop and stocked with a variety of goods, which stopped in a street on Sunday and sold to customer who was standing on the roadway a packet of tea. As in Eldorado case [(1938) 1 K.B. 715] (vide supra), the contention was repelled that such a mobile van itself would be 'a place,' a distinction was urged in that case that the ground on which the mobile van rested at the time was at least 'a place' where such retail trade was carried on and, therefore, the said place was 'a place' within the extended meaning of S. 13. At p. 717, his lordship Lord Goddard, C.J. held that it would be fanciful to distinguish the case from Eldorado case [(1938) 1 K.B. 715] (vide supra), on the ground that that case was dealing with a charge which alleged that a man sold from a tricycle, while in the case before their lordships it was sold from a place, namely, where the tricycle or van stopped, His lordship observed that they must try to construe those matters in a way which the public could understand. It would be wholly artificial to hold that the place at which a tricycle came to a stand was within the Act. It was not a place where the respondent had set up a place of business or had established himself as, for example, people establish themselves nowadays at the side of a road on Sundays by putting out a table and selling flower or fruits. It was simply the place where the respondent stopped. Slade, J. and Devlin, J., had agreed with Lord Goddard, C.J., Finally, in the case Kahn v. Newberry [(1959) (a) All E.R. 202], where the appellant was trading from a costermoner's wheel barrow, the wheel barrow was not held to be a 'shop.' It is true that Lord Parker, C.J., has reserved his opinion for a future occasion on the question whether if a barrow was at a fixed location either by practice or by licence, it would come within the definition of the term 'shop'. Therefore, even these judicial decisions which are based on the extended definition of the term 'shop' as a place where retail business is carried on, do not hold such a mobile vehicle to be a 'shop' for the simple reason that a mobile vehicle is always at some 'place', but the vehicle itself is not 'a place.' 'A shop, 'as interpreted in these decisions, must be some fixed place, having a definite position and location which must have been set up or established for carrying on retail trade. It is only when the place is set up as a place of business or the business is established at that place that it becomes a 'shop'.
9. Thus, looking to the intrinsic evidence, which is supplied by the limitative words that the consumption of articles of food or drink must be in or in the vicinity of such shop and from the use of the term 'shop' itself, it is clear that both in the main definition clause as well as in the inclusive portion, the element of 'premises' or the place having some fixed location must be established before a 'place' could be said to be a 'place of public entertainment.' The rules also lead to the same conclusion. Even S. 131A, which we have considered, contemplates a mandatory order by the Magistrate to the person concerned to close the place of public entertainment. That also indicates suitable and whose keeper also would be considered a suitable person by the police authorities and which would be licensed under the Act. Sri Nanavati, the learned Assistant Government Pleader, urged that such closure could be done by stopping the business activity. We cannot agree with that contention of Sri Nanavati for the simple reason that what is contemplated as closing of a place of public entertainment, which must be the licensed shop itself. Therefore, even after the place is closed, the shop must remain at that place as a closed shop which is not open as a 'place of public entertainment' for entertaining the public in or in the vicinity of that shop. In case of a mobile van, which has no fixed place whatsoever, there would be no question of closing of the shop itself as it would not remain a shop after it is closed and its closure itself. Thus, both the intrinsic and extrinsic evidence which we have considered lead us to the necessary conclusion that such mobile vehicles with no fixed place would not come within the scope of 'a place of public entertainment' which could be licensed under S. 33(1)(w) of the Act. We would be really in the guise of interpretation, substituting new words by recasting the section by replacing the term 'shop' by the term 'any place, fixed or mobile,' which the legislature has advisedly not used. Unless the plain literal construction of the statute leads to any absurdity or any inconsistency or defeats the purpose, the legislature may reasonably be considered to have intended, it is not open to any court to rewrite the provisions of the statute or to modify its language, especially when we which are of a penal nature. Therefore, our final conclusion is that the aforesaid mobile vehicle cannot be called 'a shop' which would come within the definition of the term 'place of public entertainment' under S. 2(10) of the Act, and, therefore, such, a place would not require any licence to be obtained under the licensing rules which are made under the said section.
10. In the result, we must allow this revision application and the order of conviction and sentence passed against the accused must be set aside and the accused must be acquitted of the charge laid against him.
11. The revision application is, therefore, allowed and the order of conviction and sentence passed against the accused is set aside. He is acquitted of the charge laid against him. The fine, if any, recovered from him, shall be refunded.
12. Rule is accordingly made absolute.