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2. Before I refer to cases I must draw attention to the language of the section. It uses the words "unlawfully or negligently" and not illegally. As was pointed out by Lord Ellenborough in Rex v. Vantondills (1815) 4 M. & Section 73 : 105 E.R. 762 an indictment which charges a person to have done an act unlawfully or injuriously must assume or prove that there was no lawful excuse. Le Blanc, J., said this: "Neither did they pronounce that every person who inoculated for this disease was guilty of an offence, provided it was done in a proper manner, and the patient was kept from the society of others so as not to endanger communication of the disease. In such a case the law did not pronounce it to be an offence. So the gist of the unlawful act is that there must be danger of the infection spreading. If care is taken to avoid such an infection the act cannot be said 'to be unlawful or negligent. In fact the City Municipality Act contemplates that the action will not amount to an offence if a proper lodging or accommodation is found for the infected person. When we remember that Section 269 does not use the word illegal which has been defined by Section 43 as being applicable " to everything which is an offence or which is prohibited by law ", but uses the word " unlawful ", it is clear that the prosecution must make out not only that there has been disobedience to the order of the Health Officer but also that the disobedience was unlawful and negligent and had also the effect of spreading the infectious disease. The case near in point is Cahoon v. Mathews I.L.R. 24 Cal. 494. In that case a mother was directed to remove her daughter to an Isolation Hospital. She refused to comply with the order unless she was herself allowed to accompany her child. Thereupon she was charged under Section 269 of the I.P.C. The learned Judges held that as in her own house there were no lodgers, as the order to remove was passed upon a misapprehension as to the existence of lodgers and as sufficient accommodation was provided for the infected child, the mother did not unlawfully or negligently. The learned Judges say and I entirely agree with that observation of theirs: "An Act however may be lawful though it may be illegal." Therefore although in the present case the refusal to comply with the direction of the Health Officer might have been illegal defined in Section 43, I am not prepared to hold that it was unlawful when it is found that proper precautions were taken to prevent infection and to provide a suitable lodging for the person infected. I may refer in this connection to the weighty observations of Lord Blackburn and Lord Watson in Metropolitan Asylum District v. Hill (1881) L.R. 6 A.C. 193 at p. 208. Lord Blackburn said: "On those who seek to establish that the legislature intended to take away the private rights of individuals, lies the burden of showing that such an intention appears by express words or necessary implication". Lord Watson in the same case said: "Where the terms of a statute are not imperative, but permissive, the fair inference is that the legislature intended that the discretion as to the use of the general powers thereby conferred should be exercised in strict conformity with private rights." The Health Officer would have been well within his rights if he had told the accused that he should either provide a proper lodging for the son or he should remove the child to the Hospital. That would have been in the language of Lord Watson an exercise of discretion compatible with private rights. The mere failure to carry out an order which could otherwise have been bona fide obeyed by the avoidance of the danger of infection cannot be regarded as an offence under Section 269 of the I.P.C. I must, therefore, quash the conviction. The learned Crown Prosecutor informed me that in case I came to the conclusion that the Magistrate was not justified in shutting out evidence, he was not prepared to press for the case being sent down for further enquiry. All that is necessary in a case of this decryption is to state the principle which should guide the Magistrate under similar contingencies. The fine, if paid, must be refunded.