P L D 1965 Dacca 98 (PLP)

MURSHED, J.‑These two revisional applications have been heard by us along with Revisional Applications Nos. 373, 377, 378, 380 and 381 of 1961 as they raise similar questions with regard to the applicability of various provisions of the Inland Mechanically Propelled Vessels Act (Act I of 1917) (hereinafter referred to in this judgment as the Act) in respect of prosecutions made thereunder. Under the aforesaid Act every vessel, which plies in inland water, is required to carry a Certificate of Survey in respect of "voyage" made by it. On a previous occasion a Single Bench of this Court had to deal with one such case on a reference made to this Court by a Sessions Judge. The case came to be marked as Criminal Revision Case No. 139 of 1961. That case related to an accusation that the motor launch concerned was found to carry 40/50 maunds of goods on its roof. It was contended that the carriage of goods in such a manner was a violation of the Certificate of Survey granted to the said motor launch and, that it, therefore, consti tuted an offence under the said Act. It was held by Sattar, J., who heard the reference that it was an offence under the Act and a retrial was directed in that case. The same question came up before another Single Bench of this Court presided over by Salahuddin Ahmed, J., in some of the revisional applications mentioned above. In fact, all the revisional applications specified above initially came up for hearing before him. Since he was of the view that carriage of goods or cargoes in a place alleged to be un-authorised by the said Certi ficate of Survey was not an offence under the Act, he made a reference to the effect that the aforesaid revision cases (seven in number) be heard by a larger Bench. In this background we have heard these applications. For the sake of convenience, we would dispose of the points involved in the seven petitions in four separate judgments dealing separately with distinct points which arise out of these applica tions. At the outset we propose to dispose of Criminal Revision Cases Nos. 376 and 379 of 1961, where the accusation against the petitioners concerned is that they carried goods and/or cargoes in breach of the requirement of their respective Certificates of Survey with regard to the places where such goods or cargoes are to be placed. In Criminal Revision Case No. 376 of 1961 the petitioners are, respectively, the Serang and the owner of a motor launch, called, M. L. "Abadan", who have been convicted and sentenced to suffer a punishment under section 55 of the Act for carrying cargoes on the roof of the vessel. In Criminal Revision Case No. 379 of 1961 the petitioners have been convicted under the said section 55 of the Act for carrying cargoes on the roof of a motor launch, named, M. L. "Sudan". As we have noted above, Sattar, J., under similar circumstances, took the view that an offence was committed under the provisions of the aforesaid Act, whereas Salahuddin Ahmed, J., was of opinion that the aforesaid circumstances did not constitute any offence under the Act. We shall proceed straightaway to examine the provisions of section 55 of the Act, the relevant portions of which run as follows: "55. (1)‑If any mechanically propelled vessel proceeds on a voyage in contravention of section 3, the owner and the master of the mechanically propelled vessel shall each be punishable with fine, which may‑ extend to one thousand rupees. "(2) * * * * * Section 3 of the Act, to which reference has been made in section 55, reads thus "3. (1) A mechanically propelled vessel shall not proceed on any voyage, or ply on any inland water unless she has a Certificate of Survey and a Certificate of Registry, in force and applicable to such voyage or water, and unless . . . . " It would be noticed that under section 3 an embargo has been placed on vessels from undertaking a voyage or plying in inland water without Certificates of Survey, as mentioned in the said section. The requirement of section 3 is that a mechanically propelled vessel must be in possession of a Certificate of Survey to cover every journey or voyage that it undertakes. Non‑possession of a certificate to cover the plying of the vessel is the gist of the offence under section

55. This section has nothing to do with violation of the terras of a Certificate of Survey. We shall see hereafter that violation of some of the provisions of the certificate has been made an offence by various other sections of the Act, but there is nothing in the Act which penalises every violation of the certificate. Section 55, therefore, has nothing to do with the question of carriage of cargoes on the roof of a vessel. On this point the learned Judges are in agreement and we are also of the same view. We have before us the Certificate of Survey with regard to both the vessels, namely, M. L. "Abadan" and M. L. "Sudan", and the most striking feature, which is common to both, is that there is no provision, in the respective certificates of the said vessels, requiring them to carry goods or cargoes in any specified place. Conversely, there is also no prohibition against the carriage of such goods or cargoes at an), specified place. The certificates are completely silent on this point. They do not expressly specify any particular place where cargo or goods must be kept. Neither do they prohibit the vessels from carrying goods in any particular space in the vessels. Since there is a column, which provides for a proportionate reduction of the number of passengers to be carried in the space set apart in the vessel for such passengers in accordance with the space occupied by luggages and other articles, Sattar, J., has come to the conclusion that goods or cargoes must be carried in the space specified for the said passengers. In this connection, we would quote a sample which (with some variations not material for our purpose) appears generally in every such certificate and we quote the same as follows: " If the space measured for passenger accommodation is occupied by luggages or other articles when plying by day or by night up to 10 p. m. then for every superficial feet so occupied one passenger is to be deducted from the number above stated." We do not think that, on a construction of such terms as men tioned above, it can be said that the certificate itself has specified any place for the carriage of the said goods or cargoes. All that can be said, inferentially, is that the aforesaid requirement merely permits, in an indirect manner, the carriage of goods in a space intended for the carriage of passengers subject to modification in the number of the said passengers according to the space available for them. Such implicit permission can only be spelt out inferen tially from the language of the provision quoted above. The permission is not explicit. But there is, however, no scope for a further inference that the said space nominated for carriage of passengers is also the space which is earmarked for carriage of goods or cargoes. There is no provision, anywhere in the Certificate of Survey, requiring the vessel to carry goods at any place specially nominated for that purpose. There is no positive direction to that effect. Sattar J., observes (Criminal Reference No. 139 of 1961) thus: "The carriage of goods in the Motor Launch is permitted only on the spaces meant for passengers provided there is a proportionate reduction of passengers." From what we have stated, it is clear that it can be said from the terms of the certificate, a sample of which we have set out above, that carriage of goods in spaces provided for passengers is permissible. But we are constrained to say, with respects, that there is tic, warrant for holding, on a construction of the said provisions, that goods are permitted to be carried only in the spaces provided for passengers and at no other place. It is also significant that the two headings referred to by Sattar, J., are confined to the fixation of the number of passengers allowed to be carried in the vessel, Sattar, J., also refers to section 7 of the Act. The only relevant provision is section 7 (b) (iii) which runs thus: "(iii) the number of passengers (if any) which the mechani cally propelled vessel is, in the judgment of the surveyor, fit to carry, specifying, if necessary, the respective numbers to be carried on the deck and in the cabins, and in different parts of the deck and cabins; the number to be subject to such con ditions and variations, according to the time of year, the nature of the voyage, the cargo carried or other circumstances, as the case requires;" It is obvious that the reference to the carriage of cargo in section 7 (b) (iii) is confined to the question of fixing the maximum number of passengers (and not goods) which the vessel can carry. The section is not designed to regulate carriage of goods. Nowhere, either in the Act or in the Certificate of Survey, there is any prohibition with regard to carriage of goods on the roof. Even if it can be said that, in an indirect manner, carriage of goods or cargoes on the roof of a vessel is a breach of the provisions of the Certificate of Survey, the question is, would such breach tantamount to an offence ? Or, to put it in another language, if there is a breach of the terms of the certificate, is it necessarily, an offence? Having regard to the scheme of the Act, the answer is, no not necessarily so. The framers of the Act have, with meticulous care, specifically provided for punishment for certain violations of the terms of the Certificate of Survey. See, for example, section 56 which punishes a breach of the requirement that the Certificate of Survey is to be affixed to a prominent place in the vessel. See also section 58 which punishes carriage of passengers exceeding the maximum number allowed to be carried in the vessel under the Certificate of Survey. Whenever it was intended that a breach or omission of any requirement of the law was to be punished, the Act has said so in clear and unmistakable terms. Neither the Act nor the Certificate of Survey has given any positive direction as to the place where luggages or goods are to be carried. Probably, this was not a burning question in 1917 when the Act came into being. We agree with Salahuddin Ahmed, J., that carriage of cargoes on the roof of a vessel must be made an offence under the Act itself before it can be said that the Serang and the owner of the vessel are guilty of such an offence. We fail to see in the Act, or any other provision of law, anything which makes carriage of luggages or cargoes on the roof of a vessel an offence. Under the stress of traffic in inland water in the present day, it is desirable that there should be appropriate provisions for regulating carriage of luggages and cargoes; but it is for the Legislature to direct its attention to this question and to make appropriate legislation in this behalf. In the absence of any such legislation, Courts cannot spell out an offence when the law has not done so. We have seen that section 55 of the Act has no manner of application to the facts of these two cases. Let us examine the provi sions of section 58 of the Act. The said section reads as follows "If a mechanically propelled vessel has on board or in any part thereof a number of passengers which is greater than the number set forth in the Certificate of Survey as the number of passengers which the vessel or the part thereof is, in the judgment of the surveyor, fit to carry, the owner and the master shall each be punishable with fine which may extend to ten rupees for every passenger over and above that number." This section prohibits the carrying of passengers in excess of the number set forth in the Certificate of Survey, and it has nothing to do with carriage of luggages or cargoes in a particular specified place where such goods or cargoes are required to be carried. This section also has no manner of application to the cases with which we are, at the present moment, concerned. The position, therefore, resolves itself thus : In the first place, in the certificate there is no positive direction requiring luggages and cargoes to be carried in any particular place so speci fied. From a provision directed towards regulating the number of A passengers, it can be inferred that it is permissible to carry luggages and goods in spaces assigned for carrying passengers. There is however, no prohibition against carrying luggages elsewhere in the vessel. Secondly, even if carrying goods on the roof constitutes ]a breach of the terms of the Certificate of Survey, such breach is no an offence within the mischief of the Act. It is a well‑settled principle of interpretation that in construing a penal measure it is insisted that words imposing a penalty must be clear and distinct. An intention to create an offence must plainly appear from the language used. In the application of a penal provision the Court has to make sure that the offence charged is within the letter of the law. Courts will not be astute to extend punishment, by forced construction, to cases which are not clearly embraced within the expressed provisions of an enactment. It is true that in modern times the distinction between a strict construction and a more free one has almost disappeared in the sense that statutes are now construed with strict reference to the true meaning and real intention of the Legislature. But, even to‑day the old distinction is not extinct. There' is only a change of emphasis due to a growing belief that "all modern Acts are framed with due regard to equitable as well as legal principles." But, the rule that penal statutes must be strictly construed is still a valid and sound principle of interpretation. It is founded, in the words of Marshall, C. J., "on the tender ness of the law for the rights of individuals, and on the plain principle that the power of punishment is vested in the Legislature, and not in the Judicial Department, for it is the Legislature, not the Court, which is to define a crime and ordain its punishment". The law does not, therefore, allow offences by construction and no case shall be held to be reached by penal laws unless it clearly comes within the spirit and letter of such laws. The correct position, which still holds the field, has been summed up by Pollock, C. J., in the following terms: " The common distinction taken between penal Acts and remedial Acts, that the former are to be construed strictly and others are to be construed liberally, is not a distinction, perhaps, that ought to be erased from the mind of a Judge". See Nicholson v. Fields (1862) 7 H & N 810,

817. We may also refer to Sedgwick, "Statutory Law", 2nd Ed., p. 282 and Craies on "Statute Law" 6th Ed., pp. 529 to

532. This brings us to another important question which has taxed our minds in the course of hearing these cases. The Inland Mechanically Propelled Vessels Act appears to be an anachronistic, and rather scrappy, piece of legislation insufficient to meet the requirements of modern traffic in inland water. There should be, among other things, some provision for regulating the carriage of luggages and cargo. In any event, the Act of 1917, which still adorns the Statute Book of Pakistan, requires a thorough re examination in the light of modern experience. We also feel that prosecution in respect of offences under the Act should be con ducted by more experienced lawyers and that summary procedure in the trial of such offences should normally be avoided. For reasons stated above, we make these two Rules absolute and set aside the conviction of the petitioners as well as the sentences imposed upon them. A. SUBHAN CHOWDHURY, J.‑I agree. S. Q. Rules made absolute,