Abdul Ghani and Others vs Emperor

Rowland, J.—The petitioners have been convicted u/s 28, Bengal Ferries Act, 1885. There are eight of them and each has been sentenced to a fine of Rs. 15. The substance of the case is that in contravention of Section 16 they have been maintaining a private ferry at Tengermari within two miles from the limits of a public ferry at Salkhi Ghat. The defence was that there is no ferry at Salkhi Ghat, that if there is such a ferry, its limits have never been defined and a conviction therefore cannot be had for plying a private ferry within two miles of such limits.

It was also contended that the distance from the public ferry to the private ferry ought to be reckoned not in a beeline but along the bank of the river, which might prove farther. The last point is clearly without substance. The calculation of distance between two points must be of the shortest distance and this must govern the application of Sections 16 and 28; if it were otherwise, and if the accused could choose at their option a circuitous route for the calculation, the result would be that the distance between any two points could be lengthened indefinitely. The other points need examination.

I shall take first the contention that no ferry existed. The facts are that the Guzri estate used at one time to maintain a private zamindari ferry from Salkhi Ghat at Salkhi to the other side of the river Mahananda. A rival ferry was started at Tengarmari within two miles, and the zamindari ferry then fell into disuse. The correspondence Exs. A and C between the District Board and the Manager, Guzri estate, shows that there was no trace of any realization from the zamindari ferry since the year 1327 (about 1920-21). However the notification dated 16th June 1928, Ex. 2, u/s 6(b) of the Act, directed that the private ferry at Salkhi on the Mahananda river be taken possession of and declared it to be a public ferry; and Notification No. 6542, L.S.G. of 25th June 1928, Ex. 3, directed that this public ferry be managed by the District Board of Purnea.

It appears in evidence that the District Board have not made actual provision for the ferrying of goods and passengers from Salkhi to the other side of the river and no boat is kept there at all, though a thekadar has been appointed. ''It is argued that a ferry cannot be said to exist unless it provides an actual means of crossing and that persons maintaining a private ferry cannot be penalized for plying within two miles of a ferry that does not exist. The Magistrate thought that the Gazette notifications were sufficient proof of a farry existing, "Ferry" is not defined in the Act and the meaning of the expression is discussed in Jeobaran Singh v. Ramkishun Lal AIR 1925 Pat 623. Sir Jwala Prasad, J., points out that in the absence of a definition the word should be taken in its ordinary legal significance; and he quotes the definition from a law dictionary beginning with the words: ''a liberty to have a boat." In this sense the existence of a ferry would appear to depend not on the actual maintenance of a boat and provision of facilities for crossing but on the existence of a right to maintain them. The first point therefore fails.

It is said that Section 8, Ferries Act, makes it compulsory on the Magistrate or officer in whom the maintenance of the ferry is vested to make all necessary arrangements for the supply of boats. But it does not seem to me that Sections 16 and 28 are made conditional on the fulfillment of the duties imposed by Section 8, though it may be a scandal to enforce them when thereby the result would be to deprive the public altogether of facilities of getting across the river.

On the third point it is argued that Section 6(d) empowers Government to define the limits of a public ferry and that unless the limits are so defined, there can be no prosecution. There has been some discussion as to what are the limits of a ferry. As pointed out by Sir Jwala Prasad in the case above referred to,

it is necessary that there should be two points on both sides of the river so that people and property may be conveyed from one side of the river across the other.

Ordinarily I suppose these two points are taken to be the limits of a ferry. I can find no authority for holding that it is necessary for the limits of a ferry to be defined by notification. It would seem to be a reasonable view that where the limits are well known, as in the case of most established ferries, a notification is unnecessary. It could be proved by oral evidence what are the limits between which the ferry plies. Section 6(d) would meet the case where this is doubtful and a notification u/s 6(d) would obviate the necessity of adducing oral evidence as to what the limits are. In the absence of a notification it should be proved, I think, by oral evidence what the limits of the ferry in each particular case are.

In the present case the evidence has failed to prove the existence of any definite point from which the Salkhi ferry starts or at which it terminates. There is however evidence that every part of the riverfront of Salkhi village is within two miles of Tengermari Ghat.

The question is whether that is sufficient. A ferry may be named from a village in whose neighbourhood it is, though actually the starting of the ferry may be in another village, as for instance the well known Mohendru Ghat at Patna from which a ferry is named is not actually in Mohendru village. Therefore I think that the mere name of the ghat coupled with evidence as to the situation of the village is not sufficient in the absence of definite evidence of the ferry ghat being located at a particular point. Such evidence in the present case is wanting and I think the conviction should not be maintained.

The result is that the application is allowed, the conviction set aside and the petitioners acquitted. The fines if paid are to be refunded.