1. this is an appeal against an acquittal of the accused in C.C. 305 of 1923 on the file of the Second Class Magistrate, Ponnani. The accused was charged for an offence under Section 170 of the Local Boards Act (XIV) of 1920 with keeping open a new private market. The Trying Court convicted him. The lower Appellate Court reversed the conviction and acquitted the accused, and Government have appealed against the acquittal.
2. The Taluk Board, Ponnani, has lately opened a public day market for the sale of arecanuts in Chalisseri Town. It is contended that accused keeps a private day market for the same purpose which is not licensed by the Taluk Board. This market was being held admittedly before the Taluk Board opened its market, and, when that was opened, the President issued a notice to the accused to show cause against prosecution for keeping an unlicensed market to which the accused replied that he has not been keeping any market at all.
3. The Local Boards Act does not define the term 'market,' but in this case I do not think that presents any difficulty. A market is a place set apart for the meeting of the general public of buyers and sellers freely open to any such, to assemble together, where any seller may expose his goods for sale and any buyer may purchase. The notification of the Taluk Board is Ex. E. It states that an arecanut day market is established 'for the sale of arecanuts' and directs that in future, all arecanuts brought for sale shall be taken to the said market only and sold there. The first point that the prosecution has to prove, therefore, is that in the accused's so called private market, arecanuts are being brought for sale and sold, so as to constitute an act of interference with, or in the English legal phrase, a 'disturbance,' of the public market.
4. I shall for convenience' sake at present call the premises by the name of the accused's kada without considering if he is the owner thereof or not, a point on which the accused has put forward a case that he is not the owner. P.W. No. 1, a member of the Taluk Board, states that 200 people gather in the accused's kada for sale and purchase and that he has seen 'the accused and his men collecting foes' presumably on the sales. He was deputed by the President of the Taluk Board to make a report about this unauthorised market. He admits that at the time of his visit the accused was not present and that he cannot say who 'the accused's men' are, and that as to the sort of fees collected his information is pure hearsay. His report, Ex. C, implies that the accused was present when he made his enquiry but does not say that he saw any selling of arecanut going on. P.W. No. 2 is another member of the Board. He also enquired and made a report. He says that many go to the accused's kada for selling and buying and that fees are being levied. The accused was not there also when he went. He cannot name any one who bought. His report Ex. G, shows that what he saw in the accused's kada was the weighing of arecanuts; for which a fee was being charged. The weighment was no doubt for purposes of sale. But neither member seems to have seen sales going on in the accused's kada. Struck with the fact that arecanut brought to the accused's kada and similar kadas was more than the amount brought to the Taluk Board market, they inferred that these private kadas, are used for exposing the arecanut also for sale. P.W. No. 3 says that these kadas are used for sales and that he himself has sold arecanut at the accused's kada once after the Taluk Board market was started. P.W. No. 4 states that ha has sold in the accused's kada twice after the establishment of the public market. P.W. No. 5, not a disinterested witness, says that arecanut is taken for sale to the accused's kada. D.W. No. 1 professes to have leased the accused's kada in 1922 and does not say that sales did not take place there. D.W. No. 2 who professes to be a lessee from 1923, says that he used to buy arecanut there in large quantities. D.W. No. 3 admits that he sells arecanut in Cherukutty's, that is, accused's shop. D.W. No. 4 gives no evidence on this point. The defence witnesses, who were examined really to prove that the accused had sold the shop to his sister, really support the prosecution contention that buying and selling goes on freely in the accused's shop. Taking the evidence of P.W. Nos. 3 and 4 with the evidence of defence witnesses referred to above and the facts noted at their personal inspection by P.W. Nos. 1 and 2. I am satisfied that the greater part of the buying and selling of arecanut goes on, not in the Taluk Board market opened for the purpose, but in the private markets, of which the accused's is one, and that the weighment there is merely a preliminary or a sequel to the real business, namely, the buying and selling, for which the shopman charges fees; that is, the kada is a place ordinarily used by dealers in arecanuts to meet and expose their goods for the purpose of buying and selling; in fact it is a market used for exactly the same purpose for which the Taluk Board market is designed and established, and it constitutes, therefore, a disturbance of the public market.
5. The next point is, assuming that the accused is keeping open this market, is it a 'new' market within the meaning of Section 170 of the Local Boards Act. It is not new in the sense that it has been established since that Act came into force for it was in existence prior to the Act. Is it a case then to which Section 171 would more appropriately apply as 'a private market already lawfully established at the commencement of the Act.' The Public Prosecutor argues that this phrase can only apply to private markets authorised under the previous Local Boards Act. This depends on whether under the old Act there could be any private market lawfully established which was not authorised by that Act. It seems quite clear that that could be. The provisions regulating private markets were for the first time introduced into the old Local Boards 'Act, V of 1884 by Act VI of 1900, and from Section 117(E)(3) introduced by that Act it is clear that there were even before the passing of that Act private markets lawfully established; nor does it follow that a market for which no license was granted was necessarily not lawfully established since it may have been a case provided for by Section 117 E(6) when a license had been duly applied for but the Taluk Board neglected to pass orders on the application. Such matters have not been gone into in this case since the prosecution was not under Section 171; but it follows from the argument that 'new' in Section 170 is not equivalent to 'every market not already licensed under the Local Boards Act of 1884.' It is the more necessary not to widen the moaning of the word 'new' because although under Act V of 1884, Section 117(d) and the succeeding sections, a new market might be opened under prescribed conditions, under Act XIV of 1920 no new market may be opened at all. On a consideration of the above noted I must hold that the word 'new' is used in its ordinary signification as 'for the first time opened or kept open,' and therefore that Section 170 does not apply to the accused's kada in this case. Sections 171, 175 or 179 are more appropriate sections.
6. In this view, it is unnecessary to go further into the question of whether the building in which the market is held belongs to the accused or has been transferred to his sister. I would remark that under the section it is not the owner of the premises but the person who keeps open the market, that is, presumably the person who collects or has collected for him the fees levied in the market for the exposure and sale of the goods, who is punishable.
7. I must, therefore, hold that the conviction of the accused under Section 170 was rightly reversed by the lower Appellate Court, I must, therefore, refuse to interfere with the order of acquittal and dismiss this appeal.