1. Appeal under Section 417, Code of Criminal Procedure, against the acquittar of accused in C.C. No. 1077 of 1925 on the file of the Court of the Sub-Magistrate, Salem Town (Criminal Appeal No. 91 of 1925 on the file of the Court of the Sub-divisional Magistrae, Salem).
2. The accused was charged under Sections 249 and 338, Madras Act V of 1920, for using a rice mill within three miles of Salem Municipality without license.
3. The learned Magistrate has acquitted accused for two reasons both of which are unsound. He thinks that machinery likely to be dangerous to human life within the terms of Schedule V (q) of the Act is confined to machinery dangerous to the outside public. It would be a queer machine in a factory that jeopardised the passers-by, and of course human life means the life of any person whether he be within or without the premises of the factory. The Health Officer has clearly deposed that the factory is dangerous to health, and it is difficult to understand why the Magistrate goes out of his way to argue round that fact. A process may still be unwholesome though it neither emits a smell nor breeds bacteria.
4. Then it is argued that Section 249 has been repealed, because Local Boards have similar powers of licensing under Section 193 of Madras Act XIV of 1920. Each local authority is invested with' similar power because each authority has similar responsibility. To take the present case, the Health Officer of the Municipality, and the Health Officer of the District may each find that lung disease is prevalent, and each trace it to the rice mill; and each ask his governing body to take necessary steps. The point in Maxwell which the learned Magistrate overlooks is that for one statute to cancel another they must be mutually destructive; for example, the legislature would not have constituted two distinct bodies to name the streets in a town. The question is whether the legislature can be said not to have intended the two rights to exist together (see Halsbury, ' Vol. 27, para. 323 where the case-law is cited). There is no reason to presume that the legislature did not want both the Municipality and the District Board to be vigilant in the interests of public health; in fact, the natural presumption is exactly the other way. The Sub-divisional Magistrate admits that he has found the law difficult and in such matters he will derive his best guidance from common sense, which leads to the same destination as properly understood law.
5. The appeal is allowed and the judgment and sentence of the Sub-Magistrate are restored and the order of the Sub-divisional Magistrate reversed.