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Judgment
Somasundaram J.
P.W. 1, a Rakshak attached, to the Railway Protection Force at Mayuram saw a crowd at 5 P.M. on 26th December 1969 In front of the Office of the Permanent Way Inspector attached to the Railways. Salary was then being disbursed to the members of the staff. These two petitioners were collecting amounts from the persons to when they had advanced. They were also lending amounts to fresh parties. This they did without the licence for carrying on business within the Railway premises. Whey were therefore charged under S. 120-A of the Indian Railways Act. They in defence denied their presence within the Railway premises and stated that they did not do any of the acts attributed to them. The Sub Magistrate, Mayuram convicted them and sentenced them each to per a fine of Rs. 100. On appeal, the District Magistrate. Kumbakonam confirmed the conviction but reduced the fine to Rs. 50 the petitioners contend that these convictions are not correct.
S. 120A(1) of the Indian Railways Act reads thus:-
If a person canvasses for any custom, or Hawks or exposes for sale any article whatsoever, in any railway carriage or noon any part of a railway, except under and in accordance with the terms and conditions of a licence granted by the railway administration in the behalf, he shall be punishable with fine which may extend to two hundred and fifty Rupees.
The Prosecution case is that these two petitioners canvassed custom with in the Railway premises. Virus Kuppaswami, P. W. 1, the rakshak has deposed that there was disbursement of salary, that there was a crowd and that the petitioners were collecting money from and lending money to the members of the staff within the railway premises. He has further deposed that he told them that they were engaged in money landline business without any licence. On behalf of the petitioners it is argued that the acts even if true would not fall within the purview of "canvassing any custom". What all P.W. 1 has said is that he saw these two petitioners collecting money from persons and lending money to some others persons. He has not said that these two petitioners indulged in any act of canvassing, other express, or implied, or by conduct. The word canvass as defined in the Concise Oxford Dictionary means:
Discuss thoroughly; select votes, accruals Sentiments of: ask custom of.
The word "custom" means "usual practice", established usage, business patronage, of support. The prosecutions version that these two petitioners were also advancing moneys to the members of the staff on that day is hardly acceptable because it was a pay disbursing day and it is unbelievable that the members of the staff borrowed from these persons on that day.
There is no evidence that these two petitioners actually canvassed his customer, selected any custom or business on that day. Who convictions and secrecies are not aside. The petitioners are acquitted. The fine, if collected shall be refunded. The Revision Petitions are allowed.