PUBLIC PROSECUTOR Vs. ACKUPPUSWAMY

JUDGEMENT

(1.) THIS is an appeal by the Government against the acquittal of the accused in C.C. No. 378 of 1943 in the Court of the Stationary Sub-Magistrate, Bellary. The charge was under Section 7, Motor Vehicles Taxation Act. That section says : "if the tax due in respect of any motor vehicle has not been paid, the registered owner or the person having possession or control thereof shall be punishable with fine which may extend to 50 rupees; and the amount of the tax due by him in respect of such vehicle for the quarter or quarters concerned shall also be recovered as if it were a fine." The accused was a contractor for the third Madras Regiment then at Bellary and the regiment under the agreement, Ex. A, had hired a vehicle from him from 13 December 1942 to 24 December 1942. THIS vehicle belonged to a certain. Kalappa of Bellary and the accused had hired it from Kalappa before passing it on under Ex. A to the military authorities. Exactly when he hired it from Kalappa or for how long a period does not appear. The Stationary Sub-Magistrate took the view that the accused was not during this period, 13th December 1942 to 24th. December 1942, in possession or control of the vehicle, and, as he was riot the registered owner, he acquitted him. In my opinion the Magistrate was right in his view that the accused was not in possession of the vehicle or control of it during the actual period in which it was in the custody of the military authorities under the agreement, Ex. A. There can be no question, I think, of a constructive possession as the person having possession must be somebody different from the registered owner and the terms of the agreement, in my opinion, make it impossible to accept any contention that during the period the contractor was in control. It is quite plain, however, that although the accused was neither in possession nor in control while the vehicle was in the custody of the military authorities under the agreement, he was certainly in possession for some period during the quarter in respect of which the tax had to be paid before he handed the vehicle over to the military. Technically, therefore, he was a person having possession within the meaning of Section 7 and is punish-able by fine as the tax had not been paid in respect of the motor vehicle during the quarter. There are no facts on the record which enable me to say whether] the tax might not have been more equitably recovered either from the registered owner or from the military authorities rather than from the accused. It is not clear whether he had hired the vehicle from Kalappa for a much longer period than the period during which it was in the possession of the military authorities or not. It appears that this case was tried as a test case, there being many other cases against the accused in respect of vehicles which he had hired to the military authorities. In the view I have taken the accused must be convicted of an offence under Section 7, Motor Vehicles Taxation Act, but, as far as punishment is concerned, a nominal fine of four annas will meet the case.