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PETITIONER: KEKI BEJONJI AND ANOTHER

       Vs.

RESPONDENT: THE STATE OF BOMBAY.

DATE OF JUDGMENT: 18/11/1960

BENCH: IMAM, SYED JAFFER BENCH: IMAM, SYED JAFFER SUBBARAO, K. DAYAL, RAGHUBAR

CITATION:  1961 AIR  967            1961 SCR  (2) 515  CITATOR INFO :  RF         1972 SC2058  (10)

ACT: Criminal  Trial-Search-Recovery  of articles-Denial  of  all knowledge   of  articles  recovered--No  questions  Put   on articles   recovered-accused,   if   Prejudiced-Presumption- Servant  in  Premises  of master-Whether  in  Possession  of master’s goods-Code of Criminal Procedure, 1898-(V of 1898), s.  342-Bombay Prohibition Act, 1949 (Bom. 25 of 1949),  ss. 65(b), 65(f), 66(b).

HEADNOTE: During  the search of the premises of the appellant No. 1  a complete  working still was found which was being worked  by the  appellant No. 1 and his servant, appellant No.  2.  The presidency Magistrate was satisfied that a working still and 516 illicit liquor were found.  The appellant No. 1 was examined under  section  342 of the Code of  Criminal  Procedure,  he volunteered  the statement that he did not know anything  of the  contraband  seized  by  the police  ;  so  no  specific question  about the still and other articles recovered  from his  premises  were  put by the  Presidency  Magistrate  who convicted  the appellants under ss. 65(b), 65(f) & 66(b)  of the  Bombay  Prohibition Act, relying on the  facts  of  the recovery  of  still and illicit liquor and did not  use  the provision of S. 103 for presumption against the appellants. 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 presumption  under s. 103 of the Act, as no  questions  were put to them when they were examined under s. 342 of the Code of  Criminal  Procedure (3) that as the Magistrate  had  not used  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 opportunity to rebut the same. On  behalf of appellant No. 2 it was further urged  that  he was  merely a servant of appellant No. 1; if any one was  in possession  of  the  still it was appellant  No.  1  and  no presumption against him could arise under s. 103 of the Act.

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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 prejudice  is caused to him if no further questions are  put to explain 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  evidence,  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. 1 when the High Court  relied  upon  the presumption  arising under 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(f) 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 section  no presumption could arise under s. 103 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 517 way  aided his master to come into possession of the  still, it  could not be said that the appellant No. 2 was  in  such possession of the still as would amount to an offence  under s. 65(f) of the Act.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 124  of 1959. Appeal  by special leave from the judgment and  order  dated June  19  and 20, 1959, of the former Bombay 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,   Rameshwar  Nath  and  P.  L.  Vohra  for   the Appellants. Nur-ud-din Ahmed and R. H. Dhebar, for the Respondent. 1960.  November 18.  The Judgment of the Court was delivered by IMAM,  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, Mazagaon, Bombay.  The appellant No.  1 was sentenced to 9 months’ rigorous imprisonment and a  fine of  Rs.  1,000  under s. 65(b).  No  separate  sentence  was imposed  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 Bombay High  Court against  their convictions and sentence.The High  Court  set aside their convictions under ss. 65(b) and 66(b) of the Act but maintained their conviction under s. 65(f ) read with s. 81 relying on the presumption against the appellants arising out  of  s.  103 of the Act.   The  High  Court  accordingly directed that the sentence of imprisonment and fine  imposed

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upon  the appellants by the Presidency Magistrate  under  s. 65(b)  be regarded as the sentence of imprisonment and  fine imposed on the appellants under s. 65(f)  read with s. 81. 66 518 According to the case of the prosecution, there was a search on  August 2,1958, of certain premises in the occupation  of appellant No. 1 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. 1 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, according  to  the prosecution, also contained 20  drams  of illicit liquor.  The, boiler contained four gallons of wash. There  were also 11 wooden barrels containing wash.  In  the drawing room of the premises a small glass jar containing 20 drams of illicit-liquor, a bottle of 1-1/2 drams of  illicit liquor  and  a  pint bottle containing 3  drams  of  illicit liquor   were  also  found.   A  _panchnama  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 working still was found there  but it  thought  that  it would not be safe  to  rely  upon  the conflicting and unsatisfactory 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 519 of  which he made a report to the Magistrate.   Accordingly, it  was of the opinion that the convictions under ss.  65(b) and 66(b) could not stand. On behalf of the appellants it was urged that no presumption under  s.  103  of the Act could arise as it  had  not  been established,  on  the findings of the High Court,  that  the still was an apparatus for the manufacture of any intoxicant as is ordinarily 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 provision,,;  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

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recovered  as a result of the search, then it ought  not  to have  convicted  the appellants on the  presumption  arising under s. 103 without giving the appellants an opportunity 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(f) 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 possession of the still it was appellant No.  1. There was also no evidence to show that appellant No. 2  had abetted 520 appellant  No.  1 in coming into possession  of  the  still. Appellant No. 2 was merely using the pump, presumably  under the orders of his master, and as he could not be said to  be in  possession  of the still, no  presumption  against  this appellant could arise under s.     103 of the Act. 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 manufactured, whatever suspicion  may  arise from  his  conduct.  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 suspicion 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. 1 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  used 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 manufacture 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 521 one and does not require the aid of any apparatus to ferment it.   It  was said, however, that by heating  the  toddy,  a higher  degree  of fermentation takes place and  it  becomes more potent.  We have, however, no evidence on the record as to this.  Even if we assume that toddy, when heated, becomes highly fermented 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

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appellant No. 1. 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 contraband 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. 103 522 to uphold his conviction under s. 65(f) of the Act. It  was finally urged that the sentence should  be  reduced. In  our opinion, the sentence imposed cannot be said  to  be unduly severe having regard to the provisions of the Act. Accordingly,  the appeal of appellant No. 2 is  allowed  and his conviction and sentence are set aside but the appeal  of appellant No. 1 is dismissed.                             Appeal disposed of accordingly.                    ------------------