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The State Vs. Kapurchand Adebhan Oswal and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal Nos. 1448, 1449, 1450 and 1451 of 1956
Judge
Reported inAIR1958Bom311; (1957)59BOMLR734; 1958CriLJ1009; ILR1958Bom565
ActsBombay Prohibition Act, 1949 - Sections 21, 67, 67-1A, 103, 103(1) and 103(2)
AppellantThe State
RespondentKapurchand Adebhan Oswal and ors.
Appellant AdvocateV.H. Gumaste, Additional Asst. Govt. Pleader
Respondent AdvocateZ.F. Bootwala, ;B.K. Amin and ;Z.F. Bootwala, Advs.
Excerpt:
.....103(2) of the act. therefore, where the charge is that the accused has in his possession any denatured spirit in contravention of section 21(b) of the act and that, therefore, he has committed an offence under section 67 of the act, the prosecution must prove that charge independently of the presumption under section 103(2) of the act, which would not be available to it.;the presumption envisaged by section 103(1) of the bombay prohibition act, 1949, is the presumption about an offence relating to the manufacture of an intoxicant, and not in respect of an offence arising out of contravention of section 21 of the act. - - clearly, therefore, under section 67, a person may be prosecuted for either altering or attempting to alter any denatured spirit in contravention of clause (a)..........found altered by dilution with water. there is no doubt, therefore, that the bottles containing altered denatured spirit were found in possession of the respondents when their shops were raided, and the question is whether knowledge, or the existence of reason to believe, that the alteration was made with the intention that such denatured spirit may be used for human consumption shall be presumed under b. 103 against the respondents or must be proved.3. now, it is clear that the provisions of sub-section (1) of section 103 will not be attracted in this case. the provisions of sub-section (1) are general and they relate to the presumption to be drawn 'in prosecutions under any of the provisions' of the act. it is true that the expression 'any of the provisions of this act' would prima.....
Judgment:

Vyas, J.

1. These are acquittal appeals by the State and they raise a point of law. The point of law raised is whether in a case where a person is prosecuted under Section 67 of the Bombay Prohibition Act for being found in possession of any spirit which has been altered or attempted to be altered, it shall be presumed under Section 103 of the Act, without further evidence until the contrary is proved, that the possession is in contravention of Section 21 of the Act, i.e. that the person in possession has knowledge or has reason to believe that the alteration or attempt at alteration has been made with the intention that such spirit may be used for human consumption and that, therefore, he has committed an offence under Section 67. The learned Judge and Magistrate has held that such a presumption is enjoined by Sub-section (2) of Section 103,but that the presumption is a rebuttable one and has been rebutted in this case by the proved circumstances of the cases. The learned Magistrate thought that the proved circumstances of the cases were that all the bottles were packed, sealed and labelled and that the labels purported to show that the contents of the bottles were French Polish. The learned Magistrate thought that, in view of these circumstances, the respondents could not have known or could not have had reason to believe that the bottles contained denatured spirit which was altered by dilution with water. Accordingly, the learned Magistrate ordered the acquittal of the respondents and the State, feeling aggrieved by that order, has filed these appeals. In our view, a presumption about the commission of an offence under Section 67 for contravention of Clause (b) of Section 21 is not permissible upon the language of Sub-section (2) of Section 103. Therefore, where the charge is that the accused has in his possession any denatured spirit in con-travention of Clause (b) of Section 21 and that, therefore, he has committed an offence under Section 67, the prosecution must prove that charge independently of the presumption under Section 103, Sub-section (2), which would not be available to it.

2. The above point of law has arisen in this way. In Criminal Cases Nos. 89, 90 and 91 from which Criminal Appeals Nos. 1448, 1449 and 1450 of 1956 have arisen, the three shops of the merchants of the Khopoli village were raided and the raid led to the discovery of 260 bottles in one case, 63 bottles in the other case and 143 bottles in the third case. All these bottles were labelled 'French Polish'. In Criminal Case No. 99, the shop of the merchant of Chowk was raided and 10 bottles labelled 'French Polish' were discovered as result of the raid. Out of the bottles seized in Criminal Case No. 89, two samples were sent to the Chemical Analyser and the examination of these samples revealed the absence of solids in, both the samples. In one sample the percentage of alcohol was 81 and in the other sample it was 78. The rest was water in both the samples. In other words, the examination of the substance by the Chemical Analyser showed that it was denatured spirit which was altered by dilution with water. Out of the bottles, seized in Criminal Case No. 90, four samples were sent to the Chemical Analyser and the examination of those samples also showed the absence of solids therein. In these samples the percentage of alcohol was 84, 80, 78 and 79 respectively and the rest was water in all the samples. Thus, that substance also was denatured spirit which was altered by dilution with water. Out o the bottles seized in Criminal Case No. 91, two samples were sent to the Chemical Analyser and the examination of these samples showed the presence of 0.6 per cent solids in one sample and 0.5 per cent solids in the other samples. Both the samples contained rosin. In one of these samples the percentage of alcohol was 76 and in the other sample it was 74. The rest was water in both the samples. Out of the bottles seized in Criminal Case No- 99, four samples were sent to the Chemical Analyser and the examination thereof showed the absence of solids therein. In these samples the percentage of alcohol was 76, 79, 81 and 79 respectively and the rest was water in all the samples. It is thus clear that in all the samples which were sent to the Chemical Analyser in the above mentioned cases, the denatured spirit was found altered by dilution with water. There is no doubt, therefore, that the bottles containing altered denatured spirit were found in possession of the respondents when their shops were raided, and the question is whether knowledge, or the existence of reason to believe, that the alteration was made with the intention that such denatured spirit may be used for human consumption shall be presumed under B. 103 against the respondents or must be proved.

3. Now, it is clear that the provisions of Sub-section (1) of Section 103 will not be attracted in this case. The provisions of Sub-section (1) are general and they relate to the presumption to be drawn 'in prosecutions under any of the provisions' of the Act. It is true that the expression 'any of the provisions of this Act' would prima facie include the provisions of Section 67 or S- 67-1A; but then the Legislature has specially enacted Sub-section (2) dealing expressly with prosecutions under Section 67 or Section 67-1A. Where there is a special provision made by the Legislature in the matter of a presumption to be drawn in particular prosecutions, the drawing of presumption in those prosecutions shall be regulated by the special provision and not, by the general provision. Moreover, it is clear from the language of Sub-section (1) of Section 103 that the presumption contemplated by the Legislature in enacting Sub-section (1) relates to an offence in respect of the manufacture of an intoxicant and not an offence arising out of a contravention of Section 21 of the Act. This is evident from the words 'an offence under this Act in respect of any intoxicant, hemp, mhowra flowers or molasses or any still, utensil, implement or apparatus, whatsoever for the manufacture of any intoxicant as are ordinarily used in the manufacture of such intoxicant' in Sub-section (1). Substances such as hemp, mhowra flowers and molasses are used for the manufacture of an intoxicant. The use of a comma by the Legislature after the words 'intoxicant' 'hemp', 'still', 'Utensil' and 'apparatus' would also show that these words arc to be read with the words 'whatsoever for the manufacture of any intoxicant.' It is obvious, therefore, in our view, that the presumption envisaged by Sub-section (1) of Section 103 is the presumption about an offence relating to the manufacture of an intoxicant, and not in respect of an offence arising out of contravention of Section 21 of the Act.

4. Sub-section (2) of Section 103 is a special provision and it relates to a presumption in prosecutions under Section 67 or Section 67-1A. We are not concerned with Section 67-1A in these appeals as the substance, which is the subject-matter of the prosecution in these cases, is not denatured spirituous preparation, but denatured spirit. Now, an offence under Section 67 arises out of a contravention of Section 21, and Section 21 consists of two parts, clause (a) and Clause (b). Clause (a) prohibits alteration or attempt at alteration of any denatured spirit with a certain intention. Clause (b) prohibits possession of any denatured spirit with certain knowledge etc. Clearly, therefore, under Section 67, a person may be prosecuted for either altering or attempting to alter any denatured spirit in contravention of Clause (a) of Section 21 or for being found in possession of any denatured spirit in contravention of Clause (b) of Section 21. The language of Sub-section (2) of Section 103 which admits of no ambiguity would show that in enacting the sub-section, the Legislature intended to legislate about the presumption in respect of an offence arising out of altering or attempting to alter any denatured spirit in contravention of Clause (a) of Section 21, but not in respect of an offence committed by being found in possession of any denatured spirit in contravention of Clause (b) of Section 21. In the context of the words 'any denatured spirit which has been or attempted to be altered', the words 'contravention of the provisions of Section 21' in Sub-section (2) of Section 103 must refer to contravention of Clause (b) of Section 21. Accordingly, the presumption under Sub-section (2) of Section 103 would not be available to the prosecution in these cases.

5. Nevertheless, in Criminal Cases Nos. 89, 90 and 99, the prosecution has established that the respondents have contravened the provisions of Clause (b) of Section 21 and have thereby committed an offence under Section 67. Upon the results of the examination by the Chemical Analyser of the contents of the bottles seized from the respondents in these cases (Nos. 89, 90 and 99), it could not be doubted that the respondents were in possession of denatured spirit which was found, altered by dilution with water. In Criminal Case No. 89, as I have shown, two samples out of the bottles seized from the respondent were sent to the Chemical Analyser for examination, One of these samples was found to contain 81 per cent alcohol and the other sample was found to contain 78 per cent alcohol. The rest was water in Both the samples. Thus the samples were the samples of denatured spirit which was altered by dilution with water. In Criminal Case No. 90, four samples out of the bottles seized from the respondent were sent to the Chemical Analyser for examination. These samples contained 84, 30,78 and 79 per cent alcohol respectively and the rest was water. In Criminal Case No. 99, four samples out of the bottles seized from the respondent were sent to the Chemical Analyser for examination. These samples contained 76, 79, 81 and79 per cent alcohol respectively and the rest was-water. There is no doubt, therefore, that the respondents in these cases were in possession of denatured spirit which was altered by dilution with water- The question is, did they know or have reason to believe that the denatured spirit in the bottle was altered with the intention that such spirit may be used for human consumption. Upon the circumstances of these cases, the question must be answered in the affirmative, i.e., against the respondents.

6. The respondents contend that the bottles-were all packed and sealed, and, therefore, they could not have known nor could they nave had reason to believe that the contents of the bottles, were altered and that the alteration was made with the intention that they may be used for human consumption, Their case is that they honestly believed that the bottles contained 'French Polish' as the labels indicated. In our view, there is no substance in these contentions. It may be noted that the respondents are shop-keep us doing business in small village of Khopoli and Chowk and it is impossible that they would have been in innocent possession of these bottles. Having regard to the small size of the villages Khopoli and Chowk and having further regard to the small scale of the business done by the respondents, it is impossible to hold that the respondents could have honestly believed that the bottles, which were seized from them, contained 'French Polish.' In our view, they could not have ordered out so many bottles of 'French Polish' in those small villages. Those are not cases of a stray bottle or two being found with the respondents. As many as 260 bottles, 63 bottles and 10 bottles respectively were found with the respondents in Criminal Cases Nos. 89, 90 and 99 and the contents of these bottles were more than 73 per cent alchohol in each case. The respondents have not produced any invoices, accounts etc, to show when and where from they purchasedthese bottles and for what price were the bottles purchased. It is true that the labels on the bottles purported to show that the contents of the bottles were 'French Polish', but there is no proof whatever on the record of these cases that the labels were genuine labels. There is no evidence to show who put those labels, when the labels were put and where the labels were put. It is pertinent to note that in case No. 89 the respondent does business in cloth, umbrellas and caps. In case No. 90, the respondent does business in grocery. In case No. 99, the respondent is doing business in general provisions. Bearing in mind the above nature of the business of the respondents, it is impossible to understand their possession of as many as 260 bottles in one case, 63 bottles in the other case and 10 bottles in the third case, except upon the hypothesis, which in our view is the only hyopothesis possible, that the respondents must have known, or must have had reason to believe, that the contents of the bottles were denatured spirit which was altered by dilution with water. In this context it is significant to remember that the first information in cases Nos. 89 and 91 shows that the bottles were concealed in old tins and torn gunny bags. If the respondents, in the course of their business, honestly believed that the bottles, as the labels showed, contained denatured spirit which was not altered by dilution with water, it is not understood why the bottles, instead of being kept as they would be normally kept, were kept concealed in old tins and torn gunny bags.

7. Upon the abovementioned circumstances, we are satisfied that the prosecution has proved .that the respondents in cases Nos. 89, 90 and 99 were in possession of denatured spirit which was altered by dilution with water and that they had knowledge or had reason to believe that the denatured spirit in the above bottles was altered by dilution with water with the intention that it may be used for human consumption. That being so, in our view, the respondents in Criminal Appeals Nos. 1443, 1449 and 1451 are guilty of an offence under Section 67 of the Bombay Prohibition Act. We convict these respondents accordingly under Section 67 and sentence each of them to suffer three months' rigorous imprisonment and to pay a fine of Rs. 500 or in default to suffer one months further rigorous imprisonment in each case.

8. Now, in respect of Criminal Case No. 91 from which Criminal Appeal No. 1450 of 1956 has arisen, as I have already said, two samples out of the bottles seized from the respondent were sent to the Chemical Analyser. In one of these samples, 0.6 per cent solids were discovered by the Chemical Analyser. In the other sample 0.5 per cent solids were discovered by him. In both the samples, rosin was found by the Chemical Analyser. In these circumstances, we are of the view that this would be a fit case for remand to the trial Court with a direction that the learned Civil Judge and Magistrate will give his finding as to what precisely was the nature of the solids whichwere discovered in the abovementioned samples, whether these solids would be normally found in 'French Polish' and whether the small percentage of the solids would be compatible with the substance being genuine 'French Polish'. The learned Magistrate should also give a finding whether rosin would be one of the ingredients of 'French Polish'. The learned Magistrate should return the findings to this Court within three months of the date of the receipt of this judgment.

9. All the bottles in Criminal Appeals Nos. 1448, 1449 and 1451 of 1956 to be confiscated.

10. Order accordingly.


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