John Beaumont, C.J.
1. This is an appeal by the accused against their conviction under Section 43(1)(i) of the Bombay Abkari Act, 1878, the offence charged being that they sold without a licence a bottle of beer and, ai bottle of rum. At the trial the bogus customer went back! on his original statement, but I agree with the learned Magistrate that there was quite enough evidence to show that on the day in question the appellants did sell a bottle of beer and a bottle of rum, and, in my opinion, therefore, their conviction is justified.
2. But the learned Magistrate, in convicting the accused, passed an order for the confiscation of exhibits E and G, exhibit E being liquor which was found, on the police raiding the premises, in the kitchen adjacent to the place where the sale took place, and exhibit G being a very considerable amount of liquor found in a godown at the back of the accused's premises, and the principal question in this appeal is whether those exhibits are liable to confiscation. The section dealing with confiscation is Section 54 of the Bombay Abkari Act, which provides in Clause. (a) that whenever an offence under the Act has been committed, any intoxicant, hemp, mhowra flowers, materials, still, utensil, implement or apparatus in respect of which the offence has been committed, shall be liable to confiscation. Under that clause undoubtedly the bottle of beer and the bottle of rum in respect of which the offence was committed were liable to confiscation. The other articles, it is said, are liable to confiscation under Clause (b), which applies to any intoxicant, hemp or mhowra flowers lawfully imported, transported, manufactured, had in possession or sold along with, or in addition to, any article liable to confiscation under Clause (a). Before Clause (b) comes into operation, there must, therefore, be an offence committed under the Act, an article must be liable to confiscation under Clause (a), and that article must be dealt with in the manner specified along with, or in addition to, the other articles sought to be confiscated. It is alleged by the prosecution that exhibits E and G were had in possession along with articles liable to confiscation, namely the bottles sold.
3. Now, in this case the offence under the Act was the sale, and until the sale took effect, the bottle of beer and the bottle of rum sold were not liable to confiscation. Therefore, if one reads Clause (b) literally, nothing was had in possession along with, or in addition to, an article liable to confiscation, because after the sale, when the liability to confiscation arose, the bottle of beer and the bottle of rum were seized by the police, and they were never had in possession along with the other intoxicants in the possession of the accused. Therefore, it seems to me on a literal reading of Clause (b) that the articles in exhibits E and G are not liable to confiscation, and this being a penal clause, we must construe it strictly.
4. The learned Government Pleader says that the expression in Clause (b) 'an article liable to confiscation under Clause (a) ' means an article which may become liable to confiscation under Clause (a) on the commission of the offence which brings Section 54 into operation. If one were to read the clause in that way, I think many difficulties would arise. Clause (6) deals not only with sale, but also with other matters, for instance, importation ; and if one were to hold that importation of articles, (along with an article which might subsequently become liable to confiscation, may result in confiscation of the whole of the consignment imported, this amazing result would follow, that a sale of a bottle of whisky might lead to the confiscation of the whole ship-load of whisky with which it was imported, possibly a long time before. Obviously that cannot be right and the learned Government Pleader admits that one would have to limit the words ' become liable to confiscation ' by imposing some degree of proximity both in time and place. But that is asking the Court to legislate. It seems to me that the only sound way to construe this not very clear clause is to take the words literally, and to say that the only articles which are liable to confiscation under Clause (b) are articles lawfully imported, transported, manufactured, had in possession or sold along with something which had actually at the time become liable to confiscation. In this case the articles in the kitchen and in the godown were never had in possession along with the bottles sold after they became liable to confiscation. Therefore, those articles are not liable to confiscation.
5. The appeal, therefore, will be dismissed, with this modification that the order for confiscation of exhibits E and G will be set aside, and those exhibits must be returned to the accused.
N.J. Wadia, J.
6. I agree.