The & Ors. v. On behalf of & Ors.

The appellants on appeal by special leave contended, (1) that no presumption under s. 103 of the Act could arise; and that he had been denied the opportunity to rebut the presump tion under s. 103 of the Act, as no questions were put to them when they were examined nnder s. 342 of the Code of Criminal Procedure (3) that as the Magistrate had not nsed the provision of s. 103 for presumption against the appellants, the High Court ought not to have convicted the appellants on the presumption arising under s. 103 of the Act without giving them an opportu nity to rebut the same. On behalf of appellant No. 2 it was further urged that he was merely a servant of appellant No. l; if any one was in possession of the still it was appellant No. l and no presump tion against him could arise under s. 103 of the Act. Held, that when an accused is examined under s. 342 of the Code of Criminal Procedure and volunteers statement denying all knowledge of articles recovered from his possession, no pre judice is caused to him if no further questions are put to ex plain the possession of articles found in the premises occupied by him.

The presumption which arises under s. 103 of the Bombay Prohibition Act is that an offence under the Act is committed when a person is found in mere possession, without further eVi dence, of any still, utensil, implement or apparatus whatsoever for the manufacture of such intoxicant until contrary is proved. Thus no prejudice was caused to the appellant No. l when the High Court relied upon the presumption arising nnder s. 103 of the Act to uphold his conviction under s. 65(f) of the Act. Held, further, that it cannot be said of merely an employee in the premises that he was in physical possession of the things belonging to his master unless they were left in his custody. Where an offence under s. 65(1) of the Bombay Prohibition Act has not been established beyond reasonable doubt and the possession of still does not amount to an offence under the sec. lion no presumption could arise under s. IOJ of the Act against a person that he was in possession of the still for which he could not account satisfactorily.

In the instant case the still being in the possession of the master and there being no evidence that the employee in any 2 S.C.R. SUPREME COURT REPORTS 517 way aided his master to come into possession of the still, it could not be said that.the appellant No. z was in such posses- sion of the still as would amount to an offence under s. 65(£) of Keki Bejonji and the Act. x960 - Another CRIMINAL APPELLATE Appeal No. 124 of 1959. JURISDICTION: Criminal The s~~le of Bombay Appeal by special leave from the judgment and order dated June 19 and 20, 1959, of the former Bom bay High Court in Criminal Appeal No. 411 of 1959 arising out of the judgment and order dated March 17, 1959, of the Presidency Magistrate XX Court, Mazagaon, Bombay in Case Nos. 1952-54/P of 1958. B. M. Mistri, Ravinder Narain, S. N. Andley, J. B. Dadachanji, Rameskwar N atk and P. L. Vokra for the Appellants. N ur-"ud-din Ahmed and R. H. Dkebar, for the Res pondent.

1960. November 18. The Judgment of the Court was delivered by l:MAM, J.-The appellants were convicted under ss. 65(b), 65(f) and 66(b) of the Bombay Prohibition Act of 1949, hereinafter referred to as the Act, by the Presidency Magistrate XX Court, Maza.ga.on, Bombay. The appellant No. 1 was sentenced to 9 months' rigo- rous imprison~ent and a fine of Rs. 1,000 under s. 65(b ). No separate sentence was ~mposed under the other sections. Appellant No. 2 was sentenced to 6 months' rigorous imprisonment and fine of Rs. 500 under· s. 65(b ). No separate sentence was imposed under the other sections. They appealed to the Bom- 1 bay High Court against their convictions and sen tence.~The High Court set a.side their convictions under ss. 65(b) and 66(b) of the Act but maintained their conviction under s. 65(f) read withs. 81 relying on the presumption against the appellants arising· out of s. 103 of the Act. The High Court accordingly direct ed that the sentence of imprisonment and fine imposed upon the appellants by the Presidency Magistrate under s.

65(b) be regarded as the sentence of imprison ment and fine imposed on the appellants under s. 65(f) read with s. 81. 66 Tmam J. Keki Bejonji and Another v. The State of Bombay Imam]. 518 SUPREME COURT REPORTS [1961] According to the case of the prosecution, there was a search on August 2, 1958, of certain premises in the occupation of appellant No. I on the third floor of Dhun Mansion, Khetwadi 12th Lane. A complete working still was found there and both the appellants were working it. Appellant No. 2 was pumping air into the cylinder with a motor pump while appellant No. I was holding a rubber tube attached to the tank. An iron stand with a boiler on it was also found there. Below the boiler there was a stove which was burning. There was also a big jar near the still. According to the prosecution, this big jar contained illicit liquor. Another glass jar was used as a receiver which, accord ing to the prosecution, also contained 20 drams of illicit liquor.

The, boiler contained four gallons of wash. There were also 11 wooden barrels containing In the drawing room of the premises a small wash. glass jar containing 20 drams of illicit liquor, a bottle of Ii drams of illicit liquor and a pint bottle contain ing 3 drams of illicit liquor were also found. A pan chnama was drawn up concerning the recovery of these articles. It was the case of the prosecution that the appellants were manufacturing illicit liquor and were in possession of a still and other materials for the purpose of manufacturing intoxicant and were also in possession of illicit liquor. The Presidency Magistrate was satisfied that a working still and illicit liquor in the glass jars and the two bottles were found in the premises in question. The High Court also was of the opinion that a work ing still was found there but it thought that it would not be safe to rely upon the conflicting and unsatis factory evidence in the case to hold that illicit liquor had been found in the premises in question, as it had not been satisfactorily proved that the bottles and the glass jars had been sealed in the presence of the panchas.

The High Court was further of the opinion that there was no evidence on the record to show that the very bottles which were attached and the sample bottles in which was contained the wash were the bottles which were examined by the Chemical Examiner in respect 2 s.c.R. SUPREME COURT REPORTS 519 of which he ma.de a. report to the Magistrate. Accord- ingly, it was of the opinion that the convictions under K k. B-.- .. ss. 65(b) and 66(b) could not stand. c96o e 'An":t~:~· an v. On behalf of the appellants it was urged that no Bombay Imam J. presumption under s. 103 of the Act ci; mld airise as it The State of had not been established, on the findings of the High Court, that the still was an apparatus for the manu facture of any intoxicant as is o;dinarily used in the manufacture of any intoxicant. It was further argued that no questions were put to the accused, when they were examined under s .. 342 of the Code of Criminal Procedure, in this connection and therefore they had been denied the opportunity to rebut the presumption.

The Presidency Magistrate had not used the provisions of s. 103 against the appellants because he had found that in fact illicit liquor had been recovered from the premises and that the· still was for manufacturing such intoxicant. If the Presidency Magistrate had at all intended to use the presumption under s. 103 against the appellants, he was bound to have given them an opportunity to rebut it. If at the appellate stage the High Court was of the opinion that it had not been established that any illicit liquor had been recovered as a ~esult of the search, then it ought not to have convicted the appellants on the presumption arising under s. 103 without giving the appellants an oppor- tunity to rebut the same. In this case the offence under s. 65(f) would be the using, keeping or having in possession a still or apparatus for the purpose of manufacturing any intoxicant other than toddy. It was not established by the evidence that the still or apparatus recovered from the premises occupied by appellant No.

1 was one which is not ordinarily used for the manufacture of toddy. It was further urged on behalf of appellant No. 2 that he could not be convicted either for being in possession of the still or under s. 65(£) read with s. 81, that is to say, abetment of an offence under s. 65(f) of the Act. This appellant was merely . a servant of appellant No. 1. If any one was in possessiqn of the still it was appellant No. 1. There was also no evi dence to show that appella.nt No. 2 had abetted 520 SUPREME COURT REPORTS [1961] r960 K k" ~ .. appellant No. I in coming into possession of the d still. Appellant No. 2 was merely using the pump, • •A:!:;;; an presumably under the orders of his master, and as he could not be said to be in possession of the still, no Th• State of presumption against this appellant could arise under v. s. 103 of the Act. Bombay Imam]. We would deal with the case of appellant No. 2 first. There is no evidence that he in any way aided his master to come into possession of the still.

It would be reasonable to suppose that when he was using the pump he was doing so on the orders of his master and he may not have been aware of what was being manu ~actured, whatever suspicion may arise from his con duct. It cannot also be said that he was in possession of the still. The still was in the possession of his master. He was merely an employee in the premises and cannot be said to be in physical possession of things belonging to his master unless they were left in his custody. It seems to us that whatever suspi cion there may be against the appellant No. 2 it cannot be said that it has been established beyond reasonable doubt that he was in such possession of the still as would amount to an offence under s. 65(f) of the Act. In the circumstances, no presumption could arise under s. 103 against him that he was in posses sion of the still for which he could not account satis factorily.

We would accordingly allow the appeal of appellant No. 2 and set aside his conviction and sentence. So far as the appellant No. I is concerned, there can be no question that he was found in possession of a still which, having regard to the nature of the still as disclosed by the evidence, is ordinarily US!Jd for the manufacture of an intoxicant such as liquor. Having regard to the description of the still, as found on the record, we are satisfied that the still in question is not ordinarily used for the manufacture of toddy. Indeed, it is doubtful that any still is required for the manu facture of toddy because toddy is either fermented or not. If the toddy is unfermented the need for a still is unnecessary. On the other hand, if the toddy is fermented, the process of fermentation is a natural - ' ·- I 2 S.C.R. SUPREME COURT REPORTS 521 1 960 one and does not require the aid of any apparatus to ferment it.

It was said, however, that by heating the K k' B--:- .. toddy, a higher degree of fermentation takes place and it becomes more potent. We have, however, no evi- dence on the record as to this. Even if we assume that toddy, when heated, becomes highly fe. Tmented and therefore more potent, there is nothing to show that the heating process to achieve this required an elaborate still of the kind found in the premises of appellant No. l. 4 e 'An~1:;,• an v. The State of Bombay Imam l· It was, however, pointed out that no questions were put to the appellant in order· to give him an opportunity to rebut the presumption arising out of s. 103 of the Act. It is, however, to be remembered that when the appellant was examined under s. 342 of the Code of Criminal Procedure he had' volunteered the statement that he did not know about the various contrabands seized by the police. Since this was his attitude in the matter, it is difficult to understand what further questions could have been put to him to explain the possession of the still and the various other articles found in the premises occupied by him.

It is not possible to say in this particular case that this appellant had been prejudiced by the failure of the Magistrate to put to him any specific questions about the still and the other articles found in the premises occupied by him. The presumption which arises under s. 103 of the Act is that an offence under the Act is committed where a person is found in mere possession, without further evidence, of any still, utensil, implement or apparatus whatsoever for the manufacture of any intoxicant as are ordinarily used in the manufacture of such intoxicant until the contrary is proved. It is difficult to conceive that the appellant could have given any satisfactory evidence to establish that the still and other articles found in the premises . occupied· by him could ordinarily be used for the manufacture of toddy. We are accordingly satisfied that there was no prejudice caused to the appellant, in the circumstances of the present case, when the High Court relied upon the presumption arising under s.