In Re: S. Mohammad Sheriff and Others

Suba Rao, J.—The two accused were convicted by the Second Presidency Magistrate, Madras under S. 42 (1) read with S. 123, Motor

Vehicles Act, for having used the lorry on 12th November 1946 on Perambur Barracks Road in contravention of the conditions of the permit. The

accused in Cr. B. C. No. 916 of 1947, Mohamed Sheriff, is the owner of the lorry and Joseph, the accused in Cr. K. C. No, 916 of 1917, is the

driver of the said lorry. The owner was sentenced to pay a fine of Rs. 100, in default to simple imprisonment for one month and the driver to pay a

fine of Rs. 25, in default to simple imprisonment for one week.

Mohamed Sheriff is the owner of the Roxy Taxi Co., and he owns 12 taxis, and four lorries. M. S. P. No S 5 is one of such lorries. Ex. 01 was

the permit in regard to the said lorry. Under the permit the owner was authorised to convey vegetables and food-grains only on behalf of the

military. It is admitted that on 12th November 1946 the lorry was used for carrying red sand. Both the owner and the driver would be liable to be

convicted and sentenced u/s 42 read with Section 123, Motor Vehicles Act, unless the third proviso to that section applied, section 42 (l) reads as

follows:

No owner of a transport vehicle shall use or permit the use of the vehicle in any Public place, save in accordance with the conditions of a permit

granted or counter signed by a Regional or Provincial Transport Authority authorising the use of the vehicle in that place in the manner in which the

vehicle is being used:

The third proviso reads as follows:

Provided further that a Public carrier''s permit shall, subject to any conditions that may be specified on the permit, authorise the holder to use the

vehicle for the carriage of goods for or in connection with a trade or business Carried on by him.

Under the section the owner of a vehicle cannot use the vehicle in contravention of the conditions of the permit. But an exception was made in the

case of user by the permit-holder for or in connection with the permit holder''s trade or business. Mr. Raja gopala chari argued that in this case the

lorry was used for taking red sand for the purpose of repairing the road in the accused''s factory premises. D. W. 1, manager of the Roxy Taxi

Company deposed:

Joseph was driving it. On its return journey, it carried red sand meant for road repairs in our factory premises. We purchased the red sand from

Balu Reddiar of Red Hills. We were unloading the red sand near factory gate. We did not carry red sand for hire.

There is no cross examination and for the purposes of this case I must accept the evidence that the red sand was taken for the purpose of

repairing the road in the factory premises of the accused. The question is whether such user can be said to be user in connection with a trade or

business carried on by the accused. The words are ""for or in connection with a trade or business carried on by him."" The words ""in connection

must necessarily be wider in scope than the word ""for"" and I think the user of the lorry for carrying on trade to repair the road in the factory must

necessarily be for more convenient user of the factory for his business and is therefore a user in connection with the business Carded on by him.

The learned Public Prosecutor Argued that assuming that the user was for or in connection with a trade or business carried on by the accused still

the proviso itself cannot apply as such a user is in contravention of the conditions of the permit. This argument was based upon the wording of the

proviso itself. Exhibit C. 1 is the permit given to the accused for running the lorry in question. In Cl 8 under the head ""nature of the goods to be

carried,"" it is stated ""vegetables and food-grains only on behalf of the-military."" The argument was that as the permit confined the user only to

carrying vegetables and food grains only on behalf of the military, user for any other purpose even for his own purpose in connection with trade or

business offends the proviso. The learned Public Prosecutor argues that as the authorisation in that proviso is subject to the conditions of the permit

and as the condition confines it only to the military purpose the owner cannot use the lorry for any other purpose, even in connection with, the trade

or business. If this argument is accepted the proviso would become nugatory. The object of the proviso is that under that proviso every owner is

authorised to use the vehicle for the carriage of goods for or in connection with a trade or business carried on by him. No doubt it is subject to any

conditions that may be prescribed in the permit limiting or otherwise qualifying such user. The word used in the proviso is ""shall"" and such

authorisation is absolute. The words ""subject to any conditions,"" therefore, in my view, cannot be so construed as to make that proviso itself

nugatory.

Apart from that, assuming that in a permit a condition may legally be introduced preventing the permit holder from using the Public carrier even

for his own purpose I am not satisfied that under Clause 3 such a condition had been imposed in this case. If such a condition was intended I

would have expected such a condition to have been expressly stated in the permit I cannot imply from the mere use of the word ""only"" in Clause 8

of the permit that the permit holder is precluded from using it for his own purpose for which he would otherwise be en. titled to use. The word

only"" in Clause 8 in my view means that vegetables and food grains only on behalf of the military can be carried. It only prohibits carrying even on

behalf of the military any article other than vegetables and food grains. I therefore hold that both the accused did not commit an offence u/s 42,

Motor Vehicles Act. The convictions are set aside and the criminal revision cases are allowed. The fine may be refunded to the estate.