ORDER

Desai, J. - The applicants, who are a driver and a conductor of lorry owned by one Raj Kishore Verma, have been convicted u/s 112, Motor Vehicles Act, read with Rule 79 (8), Motor Vehicles Rules, for carrying 52 passengers as against the prescribed maximum of 40, u/s 42 read with Section 123 of the Act for not issuing tickets to passengers and u/s 112 read with Rule 162 for not equipping the lorry with a fire extinguisher. On appeal the conviction of the conductor u/s 42 read with Section 123 was quashed; the other convictions and sentences were maintained.

2. The only evidence produced in the case is that of the enforcement squad inspector and the head constable working under him. They deposed that there were 62 passengers in the lorry that there was no fire extinguisher and that the passengers stated that they were not given tickets. Neither the permit nor the registration certificate which must have been in the possession of the applicants had been produced in the Court. The applicants denied all the charges and produced a witness in defence who was disbelieved by the Courts below. They found, as matters of fact, that there were 52 passengers, whereas the lorry was permitted to carry only 40 passengers, that no tickets were issued to the passengers and that there was no fire-extinguisher in the lorry.

3. Under Rule 79 (VIII) it is the duty of the driver and the conductor of a public service vehicle, as the lorry in question was, to see that no person was carried in it in excess of the seating capacity specified in the certificate of registration and of additional number permitted under the terms of the permit to be carried standing in it. Anybody who contravenes a provision of any rule is punishable u/s 112 of the Act. The registration certificate and the permit were in the possession of the applicants; under the rules they were bound to keep them with them in the lory. When they were prosecuted for committing a breach of the conditions of the certificate and the permit they must have known that they were required to be produced in evidence. They did not care to produce them in Court and the prosecution was entitled to produce secondary evidence. Consequently, the inspector could give secondary evidence to prove that under the conditions of the registration certificate and the permit the lorry could not carry more than 40 passengers. The applicants themselves did not deny, when they were examined by the trial Court, that the maximum number of passengers that they could carry was 40. What they denied was that they exceeded this number. There was thus legally admissible evidence before the trial Court to enable it to come to the finding that the applicants carried 52 passengers as against the prescribed maximum of 40. On that finding they were bound to be convicted u/s 112.

4. As regards the second charge that no tickets were issued to the passengers, the only evidence is of the inspector and the head constable. None of the passengers was examined to prove that no tickets were issued. What the inspector and the head constable deposed is that when they demanded tickets they were informed by the passengers that none had been issued to them. This evidence is clearly hearsay. The primary evidence could have been given only by the passengers; the fact whether the tickets had been issued or not could be within their personal knowledge and could not be within the personal knowledge of the inspector or the head constable. The prosecution seeks to rely upon the truth of what the passengers are said to have told the inspector and not upon the fact of their telling him. It follows that the evidence given by the inspector on the point is hearsay. The test to distinguish between direct and hearsay evidence is this:

It is direct if the Court to set upon it has to rely upon only the witness whereas it is hearsay if it has to rely upon not only the witness but some other person also.

Here the Court would have to rely upon not only the insp