- (1.) THIS appeal is directed against the order of the learned Sessions Judge, Howrah, allowing the present respondent's appeal by setting aside the order of conviction and sentence passed by. the learned Magistrate.
(2.) THE respondent was prosecuted by the appellant-Municipality (Howrah Municipality) under section 386 (1) of the Calcutta Municipal Act, 1923, as extended to Howrah (hereinafter referred to as the Act) for using a particular premises for storing iron goods for wholesale business without taking a licence under section 386 (1) of the Act for the year 1967 to 1968, that is for the period from 1. 4. 67 to 31. 3. 68. The learned Magistrate after considering the materials on record convicted and sentenced the respondent to pay a fine of Rs. 250/, in default two months' S. I. The Company was represented by its agent Sri V. S. Ramchandra who pleaded not guilty to the charge. It is undisputed that no licence fee under section 386 (1) of the Calcutta Municipal Act was paid for the period in question, that is, for 1967-68. It was held by both the courts viz. the learned Magistrate and, the learned Sessions judge that the premises in question was used as a godown in connection with the wholesale business of the respondent-firm.
(3.) THE learned Sessions Judge allowed the appeal on the only ground that the prosecution case filed on 30. 6. 68 was barred by limitation. His observations with regard to the question of limitation are quoted below:- "lastly it was argued that this prosecution is being beyond prescribed time is bad in the eye of law. It was argued that under section. 534 of the Calcutta Municipal Act as in force in the Municipality of Howrah, no person shall be liable to punishment for any offence against the Act unless complaint for such offence is made before a Magistrate within 3 months next after the date of the commission of such offence and " when such date is not known or when the offence is continuous in nature, within 3 months from the date on which the commission or existence of such offence was first brought to the notice of the Commissioners or the Chairman. In the instant case as it is argued, the Inspector himself stated that he visited the godown in question 8 or 10 times during the year 1967-68. He of course, did not give any date of any of these visits. But that would give the accused an opportunity to argue that the first visit was made during the. earlier part of the year 1967 68. That being so, this prosecution which was filed on 24. 6. 68 is hopelessly beyond time. On the other hand it was argued by the learned Advocate for the respondent municipality that under sub-section (2) of Section- 534 the offence-of failure to take out a licence shall be deemed for the purpose of sub-section (1) to be a continuance offence until the expiry of the period for which the licence is required to be taken out. When the offence is alleged to be not taking of licence for the year 1967-68 the said offence continued till 31st March, 1968 and the prosecution having been started within three months from that date is well within time. Giving my careful consideration to this point raised, I am however, unable to uphold the contention of the learned Advocate for the respondent. Sub-section (2) no doubt makes the offence of failure to take out licence a continuing offence to continue till the expiry of the List day of the year for which the licence was to be taken. But Clause (b)of Sub-section (1 ) of section 534 specially says that in case of such a continuance offence the date on which the commission of existence of the offence was first brought to be notice of the Commissioners or Chairman shall be the date within 3 months from which the prosecution has got to be started. In a case of continuing offence when the date is not known the Municipality then, of course, Municipality goes the benefit of the period as laid down in Sub-section (2) but when the Municipality comes to know the date of. the commission of the offence or of the- fact of the commission of offence or existence of the offence that should be the starting date for the period of limitation under clause (b) of the Sub-section (1) of Section 534. In the instant case the Inspector has stated that he visited 8 or 10 times this godown and saw that the same was being used as godown in the year 1967-63. As he did not and could not specify the dates, of his visit, the appellant can very well and did rightly argae that he is entitled to the presumption that those visits were beyond three months before 30. 6. 68 on which date this petition of complaint was actually filled in Court. To be more clear, if the Inspector visited to know of the existence of the offence as alleged. I find no escape, therefore, from the conclusion that this petition of complaint has been filed beyond the period of. 3 months from the date of the first knowledge as prescribed Under clause (b) of Sub-section (1) of Section 534. This point does not appear to have been raised before the learned Magistrate and as such, he had no occasion to deal with the same .;