MUNICIPAL BOARD BUNDI Vs. KALYAN

JUDGEMENT

(1.) THIS is a reference by the learned Additional Sessions Judge, Bundi recommending that the acquittal of the non-applicant Kalyan of an offence under sec. 84 of the Rajasthan Town Municipalities Act be set aside.

(2.) PARTIES have not appeared. I have gone through the record of the case as well as the judgment of both the lower courts and the explanation of the learned Magistrate. Sec. 84 of the Rajasthan Town Municipalities Act with which the accused was charged runs as follows: "any person selling or kepting for sale without a licence any articles liable to octroi for the sale of which a licence is required to be obtained, or having in his possession any such article on which octroi has not been paid shall be liable, on conviction before a Magistrate, to a fine not exceeding ten times the octroi due on all the articles so sold or kept for sale, or possessed or one hundred rupees whichever may be greater. " According to the prosecution, six boxes of cigarettes each containing fifty packets often Cavender cigarettes were seized from the possession of the accused. The learned Magistrate convicted the accuse in respect of two boxes only and held that no offence was committed so far as the remaining boxes were concerned as it was proved that they were sold to the accused by Balulal and therefore, it was Balulal who was responsible for the payment of octroi duty and not the accused. On a plain reading of the section, this view of the learned Magistrate, cannot be supported. The section makes any person having in his possession any article on which octroi duty is chargeable but has not been paid liable to punishment. It cannot be denied that the accused Kalyan was in possession of these four boxes of cigarettes and that no duty was paid in respect of them. It matter? little that these boxes were sold to him by Balulal. The section does not make punishable only the person who first brought the article chargeable with octroi duty, within the limits of the Municipality. It makes any person who is found in possession of such article answerable if it is found that octroi duty has not been paid upon it. It may be very hard because a consumer may not know whether octroi duty has been paid or not but it is for the legislature to remove this hardship, for courts interpret the law as they find it and cannot add to or subtract from it on the ground that it will work great hardship if plain meaning is given to its langu-are. The accused was therefore, just as well answerable for the possession of these four boxes as for the possession of the remaining two in respect of which he has been convicted. However, the accused has been already convicted in respect of the remaining two boxes and been sentenced to a fine of Rs. 10/ -. It has not been shown that the accused had knowledge that the octroi duty had not been paid. Under the circumstances, I do not think it proper to order retrial of the case.