( 1 ) THIS is an appeal by the State against an order dated the 1st February 1961, of the Regional transport Magistrate, Aligarh, acquitting the respondents of an offence under Section 123, motor Vehicles Act, (hereinafter referred to as the Act ).

( 2 ) BHAWANI Shankar Gautam, respondent No. 2, is the owner of a transport vehicle No, UPB 2217, and the respondent No. 1, Abdul Latif, was a driver on it. At about 5-45 p. m. on the 6th september, 1960 while the transport vehicle was being driven by respondent No. 1 on the hathras-Aligarh route it was found on checking by the Assistant Regional Transport Officer (E)that there was no permit for the Hathras Aligarh route. The respondents were therefore prosecuted under Section 123 of the Act.

( 3 ) THE plea of the two respondents was that Bishambhar Singh who was a Manager brought his relation suffering from cholera to Lon and asked the driver Abdul Latif to take him to Aligarh hospital and that as the condition of the patient was serious he brought him in the truck to aligarh and on the way it was checked by the Assistant Regional Transport Officer.

( 4 ) THE learned Magistrate, believing the testimony of the Assistant Regional Transport Officer held that the transport vehicle was empty and there was no patient in it when it was checked on the Hathras-Aligarh route but relying upon the decision of the Madras High Court in In re T. V. Moidu, AIR 1960 Mad 265 he found the respondents not guilty and acquitted them. It was held in the above case that the word using does not mean the same thing as "driving" or "being in charge of the motor vehicle" and by driving an empty lorry at a place outside the route for plying not covered by the permit the provisions of Sections 42 and 123 of the Act could not be said to have been offended.

( 5 ) ON behalf of the State the correctness of the view of the Madras High Court has been challenged and it is urged that mere driving or propelling a transport vehicle is using a vehicle, and therefore driving a vehicle without, or in contravention of the terms of, a permit is an offence. A close examination of the provisions of the Act will show that there is a clear distinction between using a vehicle in the sense of driving or propelling it and using it for the purpose of carrying passengers or goods. Section 22 says:

"no person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place for the purpose of carrying passengers or goods unless the vehicle is registered in accordance with this Chapter and certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner. "

The restriction against a driver is absolute and against an owner only to the extent of causing or permitting a vehicle to be driven for the carrying passengers or goods. In other words, no person can drive a motor vehicle without a registration certificate while an owner cannot cause or permit a vehicle to be used for carrying passengers or goods. The distinction is further brought out by the provisions of Section 123 (1) which says:"whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of Section 22 or without the permit required by Sub-section (1) of Section 42 or in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, shall be punishable. . . . . . " although the words relating to an owner in Section 22 are "cause or permit the vehicle to be driven", a different language indicating the use of the vehicle with reference to its purpose has been used in Section 123. The liability of an owner for the use of a vehicle in contravention of the terms of the permit arises under Section 42 (1) which reads:

"no owner of a transport vehicle shall use or