BABUBHAI PRABHUDAS Vs. P C ADELAJI KALUJI

JUDGEMENT

(1.) The original accused Babubhai Prabhudas Modi has filed this revision application against his conviction by the learned City Magistrate 10 Court Ahmedabad for the offence under sec. 131A of the Bombay Police Act 1951 hereinafter to be referred as the Act in that he had kept his tea kettle in a four wheel band-cart and served tea to customers without a licence. The learned City Magistrate has imposed a sentence of fine of Rs 10/- only and in default of payment of fine ordered the accused to undergo simple imprisonment of five days. Even though the amount of fine is small the accused has filed this revision application in the nature of a `test case and in view of the importance of this matter which involves a question of interpretation of the definition of the term place of public entertainments in sec 2(10) of the Acts this matter has been referred to a Division Bench and that is how it has come before us.

(2.) The case of the prosecution was that on 21st June 1966 the accused kept his tea kettle in a four wheel hand-cart and served tea to the customers without obtaining a licence under Rules issued under sec. 33(1)(v) of the Act and he had thereby committed an offence punishable under sec. 151A of the Act. The accused pleaded not guilty to the said charge. His defence was that he had not kept any place of public entertainment and therefore no licence was necessary for his four wheel hand-cart where he kept his tea kettle and he had therefore committed no offence whatsoever. The learned City Magistrate relied on the definition of the term place in sec. 2(3) of the Act and held that as it was very wide to cover even the buildings or open place such a vehicle which occupied a place was covered under sec. 33(i)(w) and such a place could be regulated by licensing rules. Accordingly the learned City Magistrate held that the accused having kept his four wheel hand-cart containing tea kettle without a licence and as he served tea to the customers without a licence the prosecution case was proved and he convicted the accused. The accused has challenged his conviction in this Revision Application.

(3.) With great respect to the learned City Magistrate he has decided the entire matter on the definition of the term place under sec. 2(3) of the Act without even making any reference to the special definition of the term place of public entertainment in sec. 2(10) of the Act with which we are concerned. Sec. 33(1)(w) of the Act provides that the Commissioner and the District Magistrate in area under their respective charges or any Part thereof may make alter or rescind rules or orders not inconsistent with this Act for: