Ghose and Gordon, JJ.
1. The only question involved in this rule is what is the true construction of paragraphs 1 and 2 of Section 335 of the Calcutta Municipal Consolidation Act, Bengal Act II of 1888.
2. The petitioner has been convicted under Sections 335 and 336 of the Act of keeping cows for profit in an unlicensed shed on the 20th and 21st May 1896, and has been sentenced to pay a fine of Rs. 50 and Rs. 1-8 as costs.
3. Section 335 runs as follows:
No person shall keep any animal for profit within Calcutta except in a place licensed by the Commissioners. Such license shall be taken out yearly before the first day of June in every year. The word 'animal' in this section shall include an elephant, camel, horse, mule, donkey, horned beast, sheep, goat and pig.
The Commissioners in meeting shall determine the places where such animals may be kept, and the rules as to paving, drainage, water-supply, cubical space, light and other conditions, subject to which the license may be granted, and may impose an annual fee not exceeding Rs. 10 for such license, and no place shall be licensed until the conditions imposed have been complied with.
4. It was contended on behalf of the petitioner before the Deputy Magistrate who tried him, and it has also been contended before us, that the conviction is illegal, because by paragraph 2 of Section 335 he was allowed time up to the 1st June 1896 to take out a license, and that therefore the prosecution for keeping an unlicensed shed in the month of May was premature.
5. It has, however, been argued by the other side that paragraph 1 of the section expressly prohibits any person from keeping any animal for profit except in a place licensed by the Commissioners ; that no place shall be licensed unless the conditions prescribed by the last paragraph of the section have been complied with; and that the penalty mentioned in Section 336 is incurred whenever any animal is kept without a license. That section runs thus:
Whoever, being the owner of any land, permits any animals to be kept thereon in contravention of the provisions of the last preceding section, shall be liable to a fine not exceeding Rs. 100, and to a further tine not exceeding Rs. 20, for each day during which the offence is continued after he has been convicted of such offence, and the person keeping the animals shall also be liable to a similar fine,' and so on.
6. The section says: 'In contravention of the provisions of the last preceding section.' The question is whether by keeping animals without a license on the 20th and 21st May, the petitioner contravened the provisions of Section 335.
7. No doubt, the law prescribes that no person shall keep any animal except in a place licensed by the Commissioners; but what we have to see is whether it is intended that the license must be taken out before such animal can be allowed to be kept, and whether the penalty provided by Section 336 is incurred whenever a party keeps an animal for profit without a license; or does not the law allow such license being taken out at any time before the first day of June in every year, and the penalty is not incurred, unless the license is not obtained by the end of the month of May.
8. With a view to enable us to arrive at a correct conclusion upon this question, we have examined several other sections relating to licenses for carriages and carts, profession, animals, slaughter house, market, and druggists shop. We desire to refer particularly to Section 363 (druggists' shop), Sections 94 to 96 (carts), Sections 87 to 90 (profession), Sections 341 to 346 (slaughter houses).
9. It appears to us that, in cases where the Legislature thought that the penalty should be incurred immediatly when the act is done without a license, they have unmistakeably expressed it in the Act (e.g., Section 341), but where they considered that persons might well be allowed to do acts subject to the license being taken out, and that some time might properly be given to, them for obtaining such license, they have indicated their intention in different language and manner (e. g., Sections 368, 335 and 336).
10. The question no doubt is not free from difficulty, but it seems to us, after the best consideration we have been able to give to it, that Section 335 was not intended to bear the meaning which the prosecution would have us to accept, and that when the Legislature have thought it fit to accord to persons the liberty of taking out licenses before the 1st of June in every year, the penalty provided by Section 336 is not incurred, unless such license is not obtained by the end of the month of May; otherwise there would really be no object in inserting paragraph 2 in Section 335.
11. Upon these grounds we think that the conviction is wrong and that this rule should be made absolute. The fine and costs, if realized, will be refunded.