JUDGMENT
Sulaiman, J.
1. This is a Reference by the Sessions Judge of Benares recommending that the conviction and the sentence passed on the accused under Section 34(4) of Act 5 of 1861 should be set aside. The accused is apparently a servant of some lady who deputed him to supply water to all who wanted it at a public place. He set up a chauki (wooden board) with an earthen jar filled with water over it and supplied water to all those who wanted it. According to the order of the Judge it is not clear whether this board was set up on a public way, nor is it clear whether it obstructed the way of the passer-by. But it is not disputed that it was set upon a public open space. Although sometimes some of the persons who took water did voluntarily give tips it is difficult to say that water was actually exposed for sale within the meaning of Sub-clause (4) of the section. The expression ‘exposes for sale’ implies that every person who takes any quantity of it has to pay for it. This obviously is not what used to happen. The witnesses have merely stated that ‘sometimes Brahmans who supply water get some alms.’ This does not show that the water which is supplied is exposed for sale. All that I have to decide in this case is whether an offence under Section 34(4) was committed. In holding that no such offence was committed, I am by no means suggesting that the accused was not guilty of any other offence under some other Act, nor am I suggesting that he was in any way justified in occupying a part of the public ground in the way he did. I accordingly accept the Reference and setting aside the conviction and sentence passed on the accused acquit him of the offence with which he was charged. I direct that the fine, if paid, be refunded.
