1. In this case the accused was charged under Section 43 of the Bombay Abkari Act (Bom. Act V of 1878), with importing an intoxicating drug into the Presidency of Bombay. The fact proved is that the accused brought twenty tolas of bhang from Wadhwan Civil Station to Viramgam. Viramgam admittedly is British territory. It is further admitted that the importation of twenty tolas of bhang into British territory from foreign territory would be punishable under Section 43.
2. The only question which arises, therefore, is whether Wadhwan Civil Station is within the Presidency of Bombay or hot. The Abkari Act extends to the whole of the Presidency of Bombay (see Section I); and by the Bombay General Clauses Act (Bom. Act I of 1904) ' Presidency of Bombay ' means the territories within British India for the time being under the administration of the Governor of Bombay in Council-' British India ' is by the same Act defined to mean all territories and places within His Majesty's Dominions which are for the time being governed by His Majesty through the Governor General of India or through any Governor or any other officer subordinate to the Governor General of India.
3. In the Court below the learned Magistrate has held that Wadhwan Civil Station is within the limits of British India, and for that view he has relied upon Mr. Justice Bayley's decision in Triccam Panachand v. The Bombay, Baroda and Central India Railway Company ILR (1885) 9 Bom. 244. That decision is clear authority for the Magistrate's decision, and the real question now before us may be said to be whether Triccam Panachand's case was rightly decided. It was the decision of a single Judge and as such is not binding upon us. It is unnecessary, therefore, to consider the reasoning upon which that case proceeded but it is material to say with great respect, that the grounds upon which Mr. Justice Bayley based his determination do not appear to my own mind to carry conviction.
4. While we are not bound by Mr. Justice Bayley's decision, there is a decision of this Court which is binding upon us, and that is the decision of the Bench in Queen Empress v. Abdul Latib Abdul Rahiman ILR (1885) 10 Bom. 186, where Mr. Justice Birdwood and Mr. Justice Jardine have held that the Civil Station at Rajkot is not part of British India within the meaning of St 21 & 22 Vic. c. 106.
5. It is urged on behalf of the appellant that the position of Rajkot Civil Station is, for our present purposes, indistinguishable from that of Wadhwan Civil Station ; and upon reference to the agreements made with these two States, and recorded in Aitchison's Treaties, I am of opinion, that this argument must be allowed. So far as the material clauses in the two agreements are concerned, they are couched in identically the same language, nor has any attempt been made before us to distinguish the language in the one agreement from the language in the other. It follows, therefore, that if in the case of Rajkot the true construction of the agreement is that Rajkot Civil Station remains outside British India the same construction must be placed upon the agreement with Wadhwan. Therefore following the decision in Abdul Latib's Case, which for the rest commends itself to my own mind, we must, I think, hold that Wadhwan Civil Station is outside the limits of British India. It is true that in Abdul Latib's case what the Court decided was that Rajkot was not part of British India, as that term is defined in the Indian Penal Code, and that the definition of 'British India' in the Indian Penal Code is framed in different words from the definition which occurs in the Bombay General Clauses Act, It appears to me, however, that so far as regards our present purposes this difference in language is not a difference of substance. Reference may also, I think, be made to the Privy Council decision in Hemchand v. Sakarlal ILR (1905) Cal. 219 : 8 Bom. L. R. 129, which seems to me to lend support to the view that Wadhwan Civil Station is not a place within His Majesty's dominions which for the time being is governed by His Majesty through the Governor-General of India or through any Governor subordinate to the Governor General. It may be observed further that, as was admitted in argument, the laws which prevail in the Bombay Presidency do not prevail proprio vigore in Wadhwan Civil Station, and it is irrelevant to the present point that some of such laws are extended to the Civil Station by recourse to other powers than those vested in the Bombay Legislature.
6. For these reasons, I am of opinion that, notwithstanding the decision in Triccam Panachand v. The Bombay Baroda and Central India Railway Company ILR (1885) 9 Bom. 244 we ought now to hold that Wadhwan Civil Station is not part of British India. If that is so, then it follows that the accused must be convicted of the offence with which he was charged, and I would suggest that he be punished with a nominal fine of one Rupee, seeing that the object of the appeal is not to secure this particular accused's punishment so much as to have a definite pronouncement as to the legal position of Wadhwan Civil Station.
7. I agree in the conclusion that the Wadhwan Civil Station is not part of British India, and I also agree that the decision in Queen-Empress v. Abdul Latib Abdul Rahiman ILR (1885) 10 Bom. 186 is in reality a binding authority in this case. Since that decision was pronounced matters have progressed a good deal, arguments have been rife and decisions have been obtained. The subject is one which from time to time has occupied my attention, and I could, were I so disposed, deliver a very lengthy, however imperfect, judgment on the point now in dispute. But it seems to me quite unnecessary to do this; unnecessary for me to say more than that, I think, the decision given in Queen-Empress v. Abdul Latib Abdul Rahiman was absolutely right.
8. I would only say a word or two about one argument which was advanced by Mr. Desai. He said: 'it cannot be that the people who all their lives have supposed they were living in British India, who are governed by British Officials and subject to British laws, are in truth not living in British India at all but in a Native State.'
9. Happily or unhappily it may be so. There are many places in other parts of the world where British laws are in force, where there are British Courts and British Officials, where there are people living to all intents and purposes under British Dominion, but which are in truth not part of His Majesty's Dominions. I would point out one more thing, and that is that, as a fact these British laws, under which the inhabitants of the Wadhwan Civil Station are living, are applied to that particular place by a special process and do not apply of themselves; and I can imagine no more cogent circumstance for showing to thoughtful minds that Wadhwan Civil Station is in truth not a part of British India.