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PETITIONER: STATE OF GUJARAT

       Vs.

RESPONDENT: CHINUBHAI GOPALDAS

DATE OF JUDGMENT: 13/03/1968

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. VAIDYIALINGAM, C.A. GROVER, A.N.

CITATION:  1968 AIR 1275            1968 SCR  (3) 447

ACT: Bombay  Prohibition  Act,  ss. 66(b)  and  98--Acquittal  of person  charged  with offence under  s.  66(b)--Property  in respect of which offence committed may still be  confiscated under s. 98.

HEADNOTE: A   stock   of  bottles   apparently   containing   cosmetic preparations   was   found  from  the  possession   of   the respondent.   On  analysis the bottles which were  taken  as samples were found to contain alcohol and as the  respondent did not have any licence for possessing alcohol he was  Pro- secuted  under s. 66(b) of the Bombay Prohibition Act.   The trying  Magistrate acquitted him. on the ground that he  did not  hold the bottles on his own but only as the agent of  a wholesale  dealer  who acknowledged  his  ownership.   While acquitting   the  respondent  the  Magistrate  ordered   the confiscation  of the remaining bottles under  s. 98  of  the Prohibition  Act.The  respondent  went  to  the  High  Court against the order of confiscation.  The learned Single Judge ordered  return of the bottles because according to  him  it was not proved that the 1500 and odd other bottles also con- tained  intoxicants, and therefore the order under s. 98  of the Act was illegal.  The State appealed, HELD : Under s. 98 what has to be seen is whether an offence under  the  Prohibition Act in respect of  the  property  in question  has  been  committed or not.  An  offence  may  be demonstrated  to  be  committed  although  the  accused  who committed  it may not be successfully prosecuted.  On  proof that  there is a contraband article in respect of  which  an offence  has  been  committed  the  obvious  course  is   to confiscate, it to the State.  Therefore in the present  case if  the  court  was satisfied  that  the  bottles  contained contraband article the bottles could be confiscated.[449C-E] [Order of the High Court set aside with the direction that a few  bottles at random should be analysed and if  contraband stuff against the prohibition act was found the whole  stock should be confiscated.]

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JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 162  of 1965. Appeal  by special leave from the judgment and  order  dated January 8, 1965 of the Gujarat High Court in Criminal Appeal No. 345 of 1964. Urmila Kapur and S. P. Nayar, for the appellant. The respondent did not appear. The Judgment of the Court was delivered by Hidayatullah C.J. This is an appeal by special leave against the judgment and order of a learned Single Judge of the High 448 Court  of  Gujarat,  January  8, 1965,  by  which  an  order confiscating   1500   and  odd  bottles  said   to   contain intoxicating  liquor  by  the City  Magistrate,  8th  Court, Ahmedabad, has been set aside. The  facts of the case are as follows.  On January 9,  1963, Sub-Inspector, Benot of Ahmedabad City raided a godown  con- sisting  of  two rooms in Serial No. 151010 and  Survey  No. 324/0.   He found several deal boxes which were  opened  and each box was found to contain 144 bottles packed with grass, each  bottle containing 4 oz. of some liquid.  Bottles  were of  two kinds, one containing yellow liquid and the other  a red  liquid.   The  bottles containing  Yellow  liquid  were labeled ’U.  D. Colon Solvek Cosmetics Bombay, 28. , and the bottles  containing red liquid were labeled  ’Jasmine  Batch No.  3.  Solvek Cosmetics Bombay.  From these  bottles,  two bottles,  one of each kind, were selected and were  sent  to the  Chemical  Examiner.  Baroda for test.   Before  sending them,  the  Panchas were allowed to seal  the  bottles  with paper  slips containing the signature of panchas  pasted  on them  for identification.  On analysis, they were  found  to contain  alcohol and the respondent Chinubhai  Gopaldas  was prosecuted  under  s. 66(b) of the Bombay  Prohibition  Act. The  other  bottles numbering 1584 containing  6336  oz.  of alleged alcohol were kept intact. Gopal  Das’s prosecution failed.  He was, acquitted  by  the City Magistrate, because according to him, it was not proved beyond  reasonable doubt that he was in possession of  these bottles on his own.  It was found ’that he possessed them as agents  of a wholesale merchant.  It is in evidence  however that  he did not possess a permit or licence for  possessing alcohol.   The Magistrate while acquitting him  ordered  the confiscation  of  the remaining bottles under s. 98  of  the Prohibition Act. The  State Government did not appeal against the  acquittal. Gopaldas went to the High Court ’in appeal against the order of confiscation.  The learned Single Judge of the High Court ordered  return of the bottles, because according to him  it was  not  proved that the 1500 and odd  other  bottles  also contained   intoxicants.    He  therefore  held   that   the confiscation of the bottles was illegal as no order under s. 98 of the Bombay Prohibition Act could be -passed. In this appeal by the State of Gujarat it is contended that               s. 98 applies to the case.  That section reads               as follows :               "Whenever  any offence punishable  under  this               Act has been committed,               (a)   any  intoxicant, hemp,  shora,  flowers,               molasses, materials. still, utensil, implement               or 449               apparatus in respect of which the offence  has               been committed,               shall  be  confiscated  by the  order  of  the

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             Court." The short question therefore is whether it can be said  that in  respect  of  the  1500  and  odd  bottles,  an   offence punishable under-the Prohibition Act had been committed.  It is  no  doubt  true that the person  who  was  charged  with committing an offence was found not guilty, but the question is not whether the accused has been successfully brought  to book, but whether the offence in respect of the property has been committed or not. There is distinction between the two. An offence may be demonstrated to be committed although  the accused who committed it may not be successfully prosecuted. We may give an example.  Suppose in a house a vast  quantity of  contraband opium is found.  The householder may get  off because the opium was found from a place which was open  and had  access to strangers.  He may get the  benefit-of  doubt and  be  acquitted, but it is clear that in so  far  as  the opium  is concerned, an offence must be deemed to have  been committed, and if it is proved that , the contraband article was  opium, it would be remarkable that the order should  be that  the  opium be returned to the householder.   In  these circumstances,  on  proof -that the  contraband  article  in respect of which an offence has been committed is proved  to exist,  the obvious course would be to confiscate it to  the State.  In the present case, the two bottles which were sent to  the  Chemical  Examiner were  said  to  contain  alcohol although there was some doubt in the mind of the  Magistrate as  to whether there was no chance of any  malpractice.   Be that  as it may, there are the other bottles intact.   There is  some  evidence to show that they were  in  the  original packing  and were a proprietary product.  The  manufacturer- came as a witness and deposed that the liquids were  bottled by   him   as   a   proprietary   manufacture.    In   these circumstances,  it would be fair to assume that all of  them were  of  the  same kind as the ones which  were  sent  -for chemical  examination.   However an  examination  of  random samples  can be made and if they satisfy the court that  the bottles  contain  contraband  articles the  bottles  can  be confiscated.  The order of the High Court is thus set aside, but instead of restoring the order of confiscation we  order that  a  few bottles at random should be,  analysed  and  if contraband  stuff against the Prohibition Act is  found  the whole stock shall be confiscated. The appeal is allowed and the case is remanded as ordered. G.C.                   Appeal allowed. 450