JHAMMAN Vs. EMPEROR

JUDGEMENT

(1.) THIS case has been referred by the learned Sessions Judge of Budaun, with the recommendation that the conviction of the 23 accused persons in this case under Section 132 of the Municipalities Act should be set aside and the anes imposed on them refunded. It appears that the Municipal Board of Ujjhani made a rule under Section 130 of the Act prohibiting the exposure for sale or sale of fruits and vegetables outside the limits of the Municipal market, unless the persons so selling or exposing for sale obtained and held a license. The rule was sanctioned by Government and was publicly proclaimed on the spot. The accused persons not having obeyed the rule were prosecuted and convicted and sentenced to different amounts of fine. The learned Sessions Judge is of opinion that they were protected by the proviso to Section 130 of the Act, which is to the effect that no person shall be punishable for breach of any rule made under Clause (a) or Clause (e) by reason of the continuance of such manufacture, preparation or exposure for sale or sale, upon any premises which are at the time of the making of such rule used for such purpose, until he has received from the Board six months notice in writing to discontinue such manufacture, preparation or exposure for sale, or such sale in such premises." Section 143 prescribes the mode in which notice is to be served. It is admitted in the present case that notice was not served on each of the twenty-three accused in the manner laid down in Section 143. It was not proved that the accused were doing anything beyond continuing the exposure of their goods for sale or the sale of fruits and vegetables at a place called the Ganda Nala. That was the place, according to the Secretary s evidence, where fruits and vegetables were exposed for sale and sold, and the accused apparently were exposing their goods and selling them at that particular place. THIS was clearly a case in which the accused continued the act which they were prohibited from doing by the new rule promulgated by the Municipality. In order to render then liable to punishment for committing such breach, it was necessary that notice should have been served on them in the manner provided by law. As this was not done, they were not liable to punishment and are protected by the proviso to Section 130. I agree with the view taken by the learned Sessions Judge and accepting his recommendation, I set aside the conviction s and sentences and direct that the fines, if paid, be refunded.