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Queen-empress Vs. Pestanji Barjorji - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Judge
Reported in(1885)ILR9Bom456
AppellantQueen-empress
RespondentPestanji Barjorji
Excerpt:
abkari - bombay abkari act no.v of 1878, sections 43 and 53--possession of distilling materials. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain individual as arbitrator had become infructuous because of his demise held, high court of bombay, is not correct in rejecting arbitration petition filed by appellant on ground of lack of jurisdiction. .....utensils used in his trade, and was going to sell them at bulsar. on his way he informed the police patel of kosamkuva, a village in british territory, that he had such utensils, and was proceeding to sell them. he was corroborated in this statement by the police patel and witness no. 8 (bhagvan kala), and there is no evidence to show that this statement was false. if the statement is true he has satisfactorily accounted for his possession of those utensils, and the presumption which would otherwise arise under section 53 of the bombay abkari act v of 1878 does not arise. both the lower courts have omitted to notice this circumstance, and it does not seem to us that mere possession without a license of such utensils is an offence punishable under section 43. it is only in cases.....
Judgment:

Nanabhai Haridas, J.

1. It appears that the accused Pestanji Barjori'i was a distiller of spirits in the Native State of Dhararapur. His license to follow that occupation having expired, he removed from Dharampur the copper utensils used in his trade, and was going to sell them at Bulsar. On his way he informed the police patel of Kosamkuva, a village in British territory, that he had such utensils, and was proceeding to sell them. He was corroborated in this statement by the police patel and witness No. 8 (Bhagvan Kala), and there is no evidence to show that this statement was false. If the statement is true he has satisfactorily accounted for his possession of those utensils, and the presumption which would otherwise arise under Section 53 of the Bombay Abkari Act V of 1878 does not arise. Both the lower Courts have omitted to notice this circumstance, and it does not seem to us that mere possession without a license of such utensils is an offence punishable under Section 43. It is only in cases where such possession is not satisfactorily accounted for, that under Section 53 it is to be presumed, until the contrary is proved, that the accused person has committed an offence under Section 43.

2. The conviction and sentence are accordingly reversed and the fine, if levied, to be refunded to the accused.

3. Manekshah Jehdngirshah Taleyarkhan:-I ask the Court to order the restoration of the utensils in the possession of the Collector.

4. We need make no order on the subject. The conviction being reversed, the accused must, of course, have his utensils, or their value.


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