MUNICIPAL HEALTH OFFICER KOZHIKODE Vs. PALLIKUTHU MOIDU

JUDGEMENT

(1.) The two accused persons in this case were charged under S.313(1) read with S. 249 and Schedule VII of the Madras District Municipalities Act, 1920 for having stored timber without the licence enjoined by S.249 read with item [n] of Schedule V, the storing of timber, otherwise than for private use, being one of the purposes notified by the Municipal Council concerned, namely, the Municipal Council, Calicut, in the District Gazette - Ext P-7 is a copy of the notification - under S.249(1). They were acquitted by the learned Magistrate, apparently in the view that the timber was stored by them for private use, storage for such use being a purpose exempt from a licence by the penultimate proviso to Schedule V enumerating the purposes for which permises may not be used without a licence under S.249. (Hence the saving in the notification). The complainant, namely, the Municipal Health Officer, Calicut, has come up on appeal by special leave granted under S.417(3) of the Criminal Procedure Code.

(2.) The 2nd accused is admittedly both the owner and occupier of a shed within the Calicut Municipality where timber is stored, according to the evidence for the prosecution, in large quantities. The evidence for the prosecution is that the timber is stored for the purpose of making carts, as also for sale, but that does not seem to have been accepted by the learned Magistrate. However that might be, this much was admitted by the 2nd accused in Exts. P3 and P5, the replies sent by him to the Municipality when he was called upon to take a licence, namely, that he was storing the timber for the purpose of repairing carts for the public and that was repeated by him when examined under S.342 of the Criminal Procedure Code. The evidence of the two witnesses he examined in his defence was also to the same effect. Therefore, it is both proved and admitted that timber was stored for the purpose of repairing carts for the public at a place of which the 2nd accused was the owner and occupier, and the question therefore is whether it can be said that the storage was for private use.

(3.) I do not think it can. Doubtless, when the 2nd accused repairs carts for the public with the timber stored by him, he does use the timber, but I do not think that so long as the carts repaired do not belong to him but belong to others, it can be said that the timber is for his private use. He utilises it for the general public and not for his own consumption, and that seems to me enough to take the storage out of the saving in the proviso to Schedule V. Moreover the use is for a commercial purpose, and that puts the matter beyond doubt. A commercial use cannot be a private use though the converse may not always hold. I am fortified in this view by an unreported decision of Balakrishna Ayyar, J., in Criminal Appeal Nos. 643 to 661 of 1952 of the Madras High Court, a decision which is directly in point. There it was held that the storage of timber for making furniture to be sold (not even in the premises in which timber was stored but elsewhere) was not storage for private use within the meaning of the proviso to Schedule V.