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Pujamal Awadayappa and anr. Vs. State of Bombay - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal Nos. 421 and 423 of 1950
Judge
Reported inAIR1951Bom244; (1950)52BOMLR788; ILR1950Bom795
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 35; Bombay Prohibition Act, 1949 - Sections 65 and 66; Indian Penal Code (IPC), 1860 - Sections 71
AppellantPujamal Awadayappa and anr.
RespondentState of Bombay
Appellant AdvocateT.N. Walvalkar and ;S.G. Patwardhan, Advs.
Respondent AdvocateH.M. Choksi, Government Pleader
Excerpt:
.....1949, subject to the limit as regards aggregate punishment imposed by section 71 of the indian penal code, 1860, ordinarily one sentence alone should be passed for the offences of manufacturing liquor under section 65(b), and no separate sentences should be passed for the offences of possessing materials or apparatus for manufacturing liquor and for possessing liquor punishable under sections 65(f) and 66 (b) of the act.;emperor v. piru ram (1925) i. l. r 49 bom. 916, s.c. 27 bom. l. r. 1371, queen-empress v. mahomed (1892) unrep. cr. c. 597, 598, reg. v. dod basaya (1874) 11 b. h. c. r. 13, emperor v. lavji mandan (1939) 41 bom. l. r. 980, durga charan singha v. isamuddin mahmud [1948] a i r cal. 6, emperor v. mahmud ali khan (1933) i. l. r. 55 all. 557, in re vyapuri kavandan..........and proper.3. the question has to be determined by reference to the provisions of section 71, penal code and section 35, criminal p. c. section 27, bombay general clauses act will not apply, as the acts committed by the accused do not constitute offences under two or more different enactments.4. section 71, penal code, is in the following terms:'where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not ba punished with the punishment of more than one of such his offences, unless it ba so expressly provided. where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or where several acts, of which one or more than one.....
Judgment:

Chainani, J.

1. These two appeals have been heard together, as they raise common questions of law. In both these cases, the accused were found distilling liquor. Certain quantities of illicit liquor and wash were also found in their possession. They have been convicted under Section 65(b), Bombay Prohibition Act for manufacturing liquor, Section 66(b) for possessing liquor and Section 65(f) of the Act for possessing materials and apparatus for the purpose of manufacturing liquor. On the evidence led against theaccused, we felt satisfied that their convictions were correct.

2. Even though the main offence committed by them is that of manufacturing liquor, there is no doubt that their convictions for the offences of having in their possession liquor and materials and apparatus for preparing liquor are also legal, in view of Section 235, Criminal P. C. see illus. (i) (j) and (m) to that section. We, however, admitted the appeals in order to consider whether the separate sentences passed on the accused for these three offences were legal and proper.

3. The question has to be determined by reference to the provisions of Section 71, Penal Code and Section 35, Criminal P. C. Section 27, Bombay General Clauses Act will not apply, as the acts committed by the accused do not constitute offences under two or more different enactments.

4. Section 71, Penal Code, is in the following terms:

'Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not ba punished with the punishment of more than one of such his offences, unless it ba so expressly provided.

Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or

where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence,

the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.'

5. The relevant portion of Section 35, Criminal P. C. is ag follows :

'(1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of Section 71, Penal Code, sentence him, for such offenses, to the several punishments prescribed therefor which such Court is competent to inflict, . . . . '

Before 1923 the first part of this section was as follows :

'When a person is convicted at one trial of two or more distinct offences, the Court may sentence him, for such offences, to the several punishments prescribed therefor which such Court is competent to inflict, . . .'

The section also contained the following explanation :

'Separable offences which come within the provisions of Section 71, Penal Code are not distinct offences within the meaning of this section.'

There was an illustration to this section stating that breaking into a house with intent to commit theft and stealing property from the house were not distinct offences.

6. As these provisions had led to considerable divergence of opinion between the different High Courts, the word 'distinct' and the illustration and the explanation to Section 35 were deleted in 1928 by Act XVIII [18] of 1923 and the words

'subject to the provisions of Section 71, Penal Code'

were added to make it clear that this section must be read subject to Section 71, Penal Code. It ia, therefore, no longer necessary for separate sentences being passed that the offences should be distinct. The decisions of the various High Courts on the effect of Section 35, Criminal P. C., read with Section 71, Penal Code, even after the amendments made in 1923 have, however, not been uniform, see Emperor v. Piru Rama 49 Bom. 916 A. I. R. 1926 Bom. 64 : 27 Cri. L. J. 113, Ponniah Lopes, In re 57 Mad. 643: A. I. R. 1934 Mad 388: 35 Cri. L. J. 1226 and Bajo Singh v. Emperor 8 pat. 274: A. I. R 1929 Pat. 263 : 31 Cri. L. J. 83.

7. In Queen-Empress v. Francis Xavier 1890 Un. Cr. C. 506, in which the accused was convicted under Sections 417 and 420, Penal Code, and sentenced separately for these offences, it was observed that it is not legal to sentence an accused person to two separate punishments for what is substantially the same act, though it falls under two separate definitions of offences. In Queen-Empress v. Shivdia 1890 Un. Cr. C. 523, it was held that the possession of materials for manufacturing liquor and the act of manufacturing liquor were distinct offences punishable under different clauses of Section 43, Bombay Abkari Act and that, therefore, separate sentences could be passed when an accused was convicted of these offences. Section 71, Penal Code, does not appear to have been considered when this case was decided. There is no reference to it in the judgment. A contrary view was taken in Queen-Empress v. Bhawa Sardar 1 Bom. L. R. 344. In that case a person had been convicted under Section 43, Bombay Abkari Act for manufacturing liquor and also under another clause of the same Section 43 for being in possession of utensils for the manufacture of liquor and was sentenc. ed separately for each of these offences. The District Magistrate made a reference to the High Court stating that the second offence was necessarily included in the first and that separate sentences were, therefore, illegal. The reference was accepted and the sentence passed on the accused for the offence of possessing utensils for the manufacture of liquor was set aside. Queen-Empress v. Bhawa Sardar 1 Bom. L. R. 344 was followed in Emperor v. Ranio Bhikhlo 4 Bom. L. R. 720. In that case the accused was charged with manufacturing country liquor from Mhowra flowers and keeping in his possession some more soaked Mhowra flowers and apparatus for the purpose of manufacturing liquor from them. He was convicted and sentenced separately for each of these offences. Tha High Court held that the evidence disclosed one offence only and set aside the con-viction and sentence for the offence of possessing Mhowra flowers.

8. All these cases were decided before Section 35, Criminal P. C., was amended in 1923. In Emparor v. Pandu 30 Bom. L. R. 878 : A I. R. 1928 Bom. 141 : 29 Cri. L. J. 412, it was held that the offences of possessing illicit liquor and possessing apparatus for manufacturing such liquor are distinct offences, for which separate sentences can be passed. This case was followed in Emperor v. Deorao Bhivaji 37 Bom. L. R. 191 ; A. I. R. 1935 Bom 202 : 86 Cri. L. J. 924 in which it was held that the possession of an excisable article and possession of materials for manufacturing that article are two distinct offences within the meaning of Section 71, Penal Code and that the accused can be convicted and sentenced at one trial for each of these offences. In his judgment, Beaumont C. J. observed that Qusen-Empress v. Bhawa Sardar 1 Bom. L. R. 344 and Emperor v. Ranio Bhikhlo 4 Bom. L. R. 720 must be treated as no longer expressing the law, having regard to the repeal of the explanation to Section 35, Criminal P. C. It may be noted that neither in this case nor in Emperor v. Pandu 30 Bom. L. R. 378 : A. I. R. 1928 Bom. 141 : 29 Cri. L. J. 412 was the accused charged with manufacturing liquor and there was also no evidence to show that the liquor which the accused possessed was manufactured with the apparatus found in his possession.

9. The act of manufacturing liquor may be said to consist of two parts or two separate acte, acquiring or possessing apparatus and implements for the purpose of manufacturing liquor and secondly using these articles in order to prepare liquor. Also a person who manufactures liquor must necessarily be in possession of some quantity of liquor manufactured by him. Liquor cannot be distilled without possessing the apparatus for distilling it and the possession of some quantity of liquor is a necessary consequence of distilling liquor. The offences of possessing implements and apparatus for manufacturing liquor and of possessing liquor are therefore included in the offence of manufacturing' liquor and cannot be regarded as independent offences. Paras. 1 and 3 of Section 71, Penal Code, will therefore apply in such cases. See Emperor v. Mahmud Alt Khan : AIR1933All438 .

10. Paragraph 3 of Section 71, Penal Code, does Hot prohibit the passing of separate sentences. It only lays down that for offences falling within its provisions, the offender shall not be punished with a more severe punishment than the Court which tries him could awardfor any one of such offences. This means that while different sentences may be passed for various offences, the aggregate punishment awarded shall not be more severe than the maximum punishment prescribed for any one of the offences. Paragraph 1 is, however, worded differently. It states that the 'offender shall not be punished with the punishment of more than one of such of his offences.' These words have been interpreted by the Calcutta High Court in Nilmony Poddar v. Queen Empress 16 Cal. 442 . and Keamuddi Karikar v. Emperor : AIR1924Cal771 to mean that the offender should receive one sentence only. In Keamuddi Karikar v. Emperor : AIR1924Cal771 it was held that separate sentences are illegal under the first para. of Section 71, even if they are made to run concurrently. The Patna and Madras High Courts have taken the same view, see Bajo Singh v. Emperor 8 Pat. 274 : A. I. R. 1929 pat. 263 : 31 Cri. L. J 83 and Ponniah Lopes, In re 57 Mad. 613 : A. I. R.1934 Mad. 388 : 35 Cr. L. J. 1226). In Bajo Singh v. Emperor 8 pat. 274: A. i. R. 1929 pat. 263 ; 31 Cri. L. J. 83, it was observed that the amendment of Section 35, Criminal P. C, in 1923 has not altered the law as laid in Nilmony Poddar v. Queen-Empress, 16 Cal. 442. A different view has been taken by the Allahabad High Court. In Queen-Empress v. Bisheshar 9 ALL. 645 : 1887 A. w. n. 149, the accused were convicted under Sections 147 and 325, Penal Code, and sentenced separately for each of these offences. It was contended that separate sentences were illegal, as the two offences fell within the scope of Section 71. In his judgment, Sir John Edge C. J. observed (p. 648) :

'Throughout Section 71 the word 'punishment' and not the word 'sentence' is uaed and, I assume, with an object. If the earlier part of Section 71, that is, the section as it stood before it was amended, applies to this case, the answer is that none of the appellants has been punished with the punishment of more than one of his offences; that is to say, the combined periods of imprisonment do not in any of the cases exceed the maximum punishment which could have been awarded for the offence under Section 325. If it were intended by the Legislature that in cases coming within Section 71 as amended, a prisoner should be sentenced to punishment for one offence only, it would have been easy for the Legislature to have said so ... .'

11. The question was considered by a Full Bench of our High Court in Queen Empress v. Bana Punja 17 Bom. 260 . In his judgment referring the matter to the Pull Bench, Jardiue J. stated that he was inclined to agree with the view of Sir John Edge expressed in Queen.Empress v. Bisheshar 9 ALL. 645 : 1887 A. W. N. 149 that

'the words in Section 71, Penal Code about the punishment are not equivalent to prohibition of two separate sentences.'

The Pull Bench was evidently inclined to agree with this view, for in their judgment they stated (p. 270) :

'...we agree in the view taken by Mr. Mayne, atp. 44 of his Commentaries on the Penal Code, of thecombined effect of Section 71, Penal Code and Section 235, Criminal P. C., viz., that the assessment of punishment is to be found in the former section in cases falling within it; but the latter determines the procedure quite independent of it, and this Court has already ruled that, in case of separate conviotiona for two distinct offences in the aama case, the proper course is to pass a separate sentence for each offence.'

12. Somewhat different view was taken in Queen-Empress v. Malu 23 Bom. 706 : 1 Bom. L. R. 142. The question which arose for consideration in that case was whether a person, who commits house-breaking in order to commit a theft, and theft, could be separately sentenced for these offences. It was held that in such cases the Court should pass one sentence for either of the offences and not a separate one for each offence, but that if two sentences are passed, and the aggregate of these did not exceed the punishment provided by law for any one of the offences, or the jurisdiction of the Court, that would be an irregularity and not an illegality. Thereafter Section 35, Criminal P. C., was amended and it was held in Emperor v. Puru Rama 49 Bom. 916 : A.I.R. 1926 Bom. 64 : 27 Cr i. L. J. 113 that the amendment has restored the previous view of the law as taken in Queen-Empress v. Bana Punja, (17 Bom. 260 F. B.) It is arguable that the words 'shall not be punished with the punishment of more than one of such of his offences' used in para. 1 of Section 71 do not mean the same thing as the words used in Para. 3 that the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences' and that the Legislature has used a different phraaeology in the two paras with some purpose. We are, however, bound by thedecision in Emperor v. Piru Rama 49 Bom. 916 : A. I. R. 1926 Bom 64 : 27 Cr. L. J. 113) and we accordingly hold that it is not illegal to pass separate sentences for offences punishable under Section 65(b), Section 65(f) and Section 66(b), Bombay Prohibition Act, so long as the total or aggregate punishment awarded is not heavier than what the Court can inflict for any one of these offences.

13. The nest question to be considered is whether it is proper to pasa different sentences lor what substantially is only one offence, viz. that of manufacturing liquor, Section 35, Criminal P. C., does not make it obligatory to pass a separate sentence for eaoh separate offence. Theword 'may' in this section does not mean 'muat': see observations of Jardine J. in Queen-Empress v. Mahomed 1892 un. Cr. C 597 . In Reg. v. Dod Basaya, 11 Bom. H. C. R. 13, the accused was charged with setting fire to a ware-house of the value of more than Rs. 100. He was convicted and sentenced both under Sections 435 and 436, Penal Code. His conviction and the sentence passed upon him under Section 435 were reversed on the ground that 'his intention was solely to do one act, viz., to set fire to a ware-house' and 'the circumstance that the same act also answered to the definition of another and subordinate offence, did not render him liable to an additional punishment for it.' In his judgment in that case, West J. stated that it is a general rule that when, in the same penal statute, there are two clauses applicable to the same act of an accused, the punishments are not to be regarded aa cumulative, unless it be so expressly provided. In Emperor v. Lavji Man. dan 41 Bom. L. R. 980 : A. I. R. 1939 Bom. 452 : 41 Cri. L. J. 183, Lokur J. took the same view and observed that where a person is found guilty of a criminal act, which is punishable under two different sections of the Penal Code, he may be convicted under both the sections, but he should be punished only under that section which imposes the higher penalty. The Calcutta High Court has also taken similar view in Durga Charan Singh v. Isamuddin Hahmud : AIR1948Cal6 in which it was observed that even though an offence may come within two of the definitions of the Penal Code, it is improper to award two different sentences for the same set of facts.

14. A case on all fours with those which we have to decide was considered by the Allahabad High Court, in Emperor v. Mahmud Ali Khan : AIR1933All438 . In that case when the accused's place was searched, implements for manufacturing liquor and liquor in the various stages of manufacture were found. He was convicted and separately sentenced for manufacturing liquor, for having in his possession liquor and for possessing apparatus for manufacturing liquor. The Allahabad High Court set aside the sentences for the last two offences on the ground that when a person is found guilty of the major offence of illicitly manufacturing an excisable article, it is unreasonable that he should also be severely punished for keeping in his possession materials for manufacturing that article and foe possessing that article. In In re Vyapuri Kavandan A. I. R. 1939 Mad. 574 : 41 Cri. L.J. 92, the accused was convicted under ES. 4 (1) (a) and 4 (1) (g), Madras Prohibition Act and separately sentenced. It was held that as a distiller of an intoxicant would necessarily possessthe intoxicant, separate sentences for these off ences should not be passed. There are also two recent decisions of our Court. In Rex v. Venubai Trimlak, Cri. Revn. Appln. No. 1060 of 1949, D/- 18-11-1949, the accused was convicted under Clauses (b), (d) and (f) of Section 65, Bombay Prohibition Act, and sentenced separately for each one of these offences. It was held that the offence of being in possession of materials for preparing illicit liquor punishable under Clause (f) of Section 65 was really a pirt of the offence o manufacturing illicit liquor and that it was, therefore, not necessary to pass a separate sentence for the former offenca. The sentence passed on the accused under Section 65(f) of the Act was, therefore, set aside. In Emperor v. Kisan Narayan, : AIR1951Bom186 , the accused was charged with having committed offences punishable under Clauses (a), (b) and (h) of Section 43, Bombay Abkari Act. He was sentenced for the offence punishable under Clause (b) of Section 43 and no separate sentences were passed for the other offences, in view of the provisions of Section 71, Penal Code.

15. We are in agreement with the principle underlying these decisions and are of the opinion that although separate sentences can legally be passed at the same trial on a person charged with offences punishable under Section 65(b), Section 65(1) and Section 66(b), Prohibition Act, subject to the limit as regards aggregate punishment imposed by Section 71, Penal Code, ordinarily one sentence alone should be passed for the offence of manufacturing liquor under Section 65(b) and no separate sentences should be passed for the offences of possessing materials or apparatus for manufacturing liquor and for possessing liquor punishable under Section 65(f) and Section 66(b) of the Act. Of course, if the accused is shown to be in possession of liquor not distilled by him, the ast of possessing such liquor cannot be said to be covered by his act of manufacturing liquor and it would not only be legal but also proper to pass separate sentences in such cases.

16. Accordingly in both the cases before us, we set aside the sentences passed on the accused under Section 65(f) and Section 66(b) of the Act. Apart from this alteration in the sentences, both the appeals will be dismissed. Excess fines, if, paid, should be refunded.

Dixit, J.

17. I agree. In ori. Appl No. 421 of 1950 the appellants were tried for offences punishable under Sections 65(b), 65(f) and 66(b) read with Section 81, Bombay Prohibition Act, 1949. They have been convicted and sentenced under each of these sections.

18. On the evidence led by the prosecution their convictions are, in my opinion, correctand they are in accordance with Section 235, Criminal P. C.

19. The next question is whether the sentences are also correct. This is to be determined by reference to Section 35, Criminal P. C., which, so far as material, provides that when a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of Section 71, Penal Code, sentence him, for such offences-to the several punishments prescribed therefor which such Court is competent to inflict.

20. Section 71, Penal Code, runs as follows:

'Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with tbe punishment of more than one of such his offences, unless it be so expressly provided.

Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or

Where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence,

the offender shall not be punished with a more severe. punishment than the Court which tries him could award for any one of such offences.'

21. To my mind, this section regulates the measure of punishment. The language of Paras. 1. and 3 of the section is not easy to follow. It is, to some extent, even puzzling. However, the meaning of para, 1 may be gathered by reference to illus. (i) to Section 235 and that of Para. 3 by reference to Clause (3) of the said section. There is no doubt that those paragraphs contemplate the existence of different sets of facts. Thus there may be more than one offence. There can therefore, be more than one conviction. But according to para. 1 it is arguable that the punishment can only be in respect of one of the offences. Again, there may be more than one offence. There can, therefore, be more than one conviction. But according to Para. 3 the punishment can be in respect of all the offences, but it is not to exceed the term which is more severe in respect of any of thess offences.

22. In this case the offences charged are under Section 65(b), that is, of manufacturing an intoxicant; under Section 65(f), that is, of using materials for the purpose of manufacturing an intoxicant and under Section 66(b), that is, of possessing an intoxicant. The offence is that of manufacturing the intoxicant, and although separate acts are made punishable under these provisions, the offence is, in essence, one and the same.

23. Question then is: Whether separate sentences can be passed? On this point there appears to be conflict of authority. One view is that under Para. 1 of Section 71 separate sentences are illegal. This view is illustrated in casea such as Keamudi Karikar v. Emperor : AIR1924Cal771 , Bajo Singh v. Emperor 8 pat. 274 : A. I. R. 1929 Pat. 263 : 31 Cri. L. J. 83 and In re, Paniah Lopes 57 Mad. 643: A. I. R. 1934 Mad. 388 : 35 Cr. L. J. 1226. The other view 13 that under para. 3 of B. 71 separate sentences are not illegal though subject to the limit indicated in the paragraph. That view is illustrated in oasea such as Queen-Empress v. Bana Punja 17 Bom. 260 , Emperor v. Piru Rama 49 Bom. 916 : A. I. R. 1926 Bom. 64 : 27 Cri. L. J. 113, Emperor v. Pandu 30 Bom. L. R. 378 : A. I. R. 1928 Bom. 141: 29 Cri. L. J. 412 and Emperor v. Deorao Bhivaji 37 Bom. L. R. 191 : A. i. r. 1935 Bom. 202 : 36 criL. J. 924. In my opinion, we should follow the view taken in our own decisions in preference to the view taken in the decisions of other High Courts referred to above.

24. On the remaining question as to the propriety of separate sentences, it seems to me that only one sentence need be passed and it is not necessary that separate sentences should be passed. This is in accordance with the decision in Emperor v. Lavji Mandan 41 Bom. L. R. 980: A. I. R. 1939 Bom. 452 : 41 Cri L. J. 183, and other cases referred to in the judgment just delivered.


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