1. In this case it appears that at the Sealdah Railway Station these is a special siding for fish trains and a special delivery shed for the consignments of fish. In proper coarse the consignees or dealer in 6th should at once remove their good, but in practise it appeals they sell or dispose of the fish to customers within the delivery shed and its precincts. In other words, they have converted the shed and what is spoken of as its 'yard' into an unlicensed market. By a notice displayed on a notice board within this shed, the Railway Authorities have expressly authorised buying and selling within their premises in so far as transactions in quantities of 20 seers or 2 dozen and over are concerned. The notice which has been made Exhibit 5 in the case is dated 4th February 1915 and appears to be a reproduction of some earlier notice. The propriety of this recognition by the Railway Authorities of these so-called wholesale transactions is open to serious question, but not so their prohibition of transactions in smaller quantities. Unfortunately the prohibition, it appears, was permitted to become a dead letter, and it was only when in November 19 (Exhibit 3) the Corporation Health Officers moved in the matter that the Railway Officers more immediately concerned proceeded to take action. The Superintendent of Railway Police was approached and in effect requested to depute officers to stop the so-called retail sales in the shed and its precincts. Thereupon the Sub-Inspector in charge of the Sealdah Railway Police Station, one Kishori Lal Sarkar, was deputed to put an end to these retail sales. He visited the shed on the 13th, 14th and 15th January 1920, and on all these days proclaimed the prohibition of retail sales and gave public warning to all concerned that in accordance with the notice Exhibit 5, sale in quantities of less than 20 seers or 2 dozen would no longer be permitted.
2. On the 15th when one Deoki persisted in selling about a half seer of fish, he was arrested. Some five minutes later another, one Ram Gulam, who in defiance of warnings similarly persisted in selling about half a seer of fish, was also arrested. He raised an outcry and thereupon he and his fellow co-petitioners in Rule No. 865 used violence towards the Sub-Inspector and his companion constables, bringing about Ram Gulam's escape and rescue.
3. The main questions involved in these two Rules then is, whether in selling and in persisting in selling fish in the small quantities mentioned within the delivery shed Deoki and Ram Gulam were guilty of committing a nuisance within the meaning of Section 120(b) of the Railways Act IX of 1890.
4. Now the evidence shows and the findings are that this sale by retail attracts large crowds, obstructs the transaction of the business for which the shed and its courtyard are intended and impedes and delays the removal of the fish. Moreover, the delivery shed and its courtyard not being arranged and prepared for the purpose of a fish market, as the result more particularly of this retail sale, the place becomes offensive. This state of things, in our opinion, is a nuisance and to this nuisance on the occasions in question petitioner Deoki and Ram Gulam persisted in contributing.
5. Having regard, however, to the period of time over which the Railway Authorities winked at or tolerated these sales, we think, we may properly reduce the sentences.
6. In Revision No. 854 the fine imposed on petitioner Deoki will be reduced from Rs. 10 to Rs. 5 and in Revision No. 865 the fine imposed on each of the five petitioners will be reduced from Rs. 50 to Rs. 25. In default of payment of the fines imposed Deoki will undergo simple imprisonment for fourteen days. In the case of each of the other five petitioners the sentence of imprisonment in default will stand unmodified.