K S M MOHAMMAD ABDUL KADAR MARAKAYAR Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The petitioner in all these petitions is one Muhammad Abdul Kadar Marakayar. He has been convicted under Section 282, Penal Code and sentenced to pay a fine of RS. 40/-, Rs. 75/-and Rs. 100/-, respectively, in these three cases, for having knowingly and negligently conveyed or caused to be conveyed for hire persons so loaded on his three boats as to endanger the life of the persons travelling in the boats. In Cri. R. C. No. 451, 36 passengers were carried as against 24 passengers allowed under the rules. In Cri R. C. No. 453 of 1949 also there was even more gross overloading, the number of passengers conveyed being 30 instead of the 12 allowed. In Cri. R. C. No. 452, 52 passengers were carried instead of the 30 allowed. The learned counsel for the petitioner, Mr. Ahmed Meeran, has raised three main contentions.

(2.) The first is that the petitioner is not the owner of the boat concerned in Cri. R. C. No. 452, and that he has also denied the ownership in the Courts below, and that the prosecution has failed to prove his ownership or liability for the overloading in that boat. That is so. The learned Public Prosecutor also agrees. Therefore, the petitioner's conviction and sentence in C. C. No. 1147 of 1948, covered by Cri. R. C. No. 452, must be set aside, and or hereby set aside, and the fine, if paid, ordered to be refunded to him.

(3.) In the other two cases, the petitioner is admittedly, the owner of the boats which carried such terrific over loads and endangering the safety of the passengers. The number of passengers is fixed for each boat under the rules taking everything into consideration including seaworthiness, safety, etc., the safety of the passengers being the paramount consideration. Boats are likely to capsize, and drown the passengers travelling in them, if they are overloaded like this. The contention of the learned counsel for the petitioner in these two cases is that the tindal is the man in direct charge of the boats, and is the person made liable under the Ports Act, and that, under the ruling in Buchalal v. Rex, 1948 A. L. J. 354 : (A. I. R. (36) 1949 ALL. 11), owners of motor vehicles not proved to have known personally about the overloading of the motor vehicles are not liable, but only the drivers, and that the presumption of knowledge by owners does not extend to Section 72 (3) (b) of the Motor Vehicles Act, 1939. Mr. Ahmed Meeran urged that the same principle will apply to boats. I cannot agree. The tindal is undoubtedly liable for overloading boats, but that does not mean that no other body will be liable. There are cases, under our law, both civil and criminal, when several persons will be jointly liable for acts and omissions, and it is no defence for one, when charged, to say that another person liable is not charged. He may, of course, show that the others alone are liable. Here, therefore, the fact that the tindal a man of straw, has not been prosecuted for these offences, is irrelevant as the petitioner a man of substance and the owner is also liable. The ruling relied on will not have any application to this case, which relates to overloading a boat. under Section 282, Penal Code, and endangering the lives of passengers. That was a ruling under the Motor Vehicles Act, and under a specific section thereunder. It was not a ruling relating to boats or under Section 282, Penal Code, where there is the significant phrase "on negligently" which is not found in the section in the Motor Vehicles Act considered in the ruling. I am convinced that the owner who knowingly or negligently allows overloading of his boat so as to endanger the life of the persons therein will be liable under Section 282, Penal Code.