1. The two applicants-accused in Criminal Revision No. 153 of 1976 were tried for the offences Under Sections 65 (f) and 66 (1) (b) of the Bombay Prohibition Act (hereinafter referred to as Act) and were convicted by the trial Magistrate for an offence Under Section 65 (f) of the Act only, and each of them was sentenced to suffer rigorous imprisonment for 3 months and to pay a fine of Rs. 250/- or in default to suffer rigorous imprisonment for 2 months. Relying upon the ruling reported in Amar Tharumal v. State of Maharashtra (1975) 77 Bom LR 162, they were acquitted of the offence Under Section 66 (1) (b) of the Act.
2. The convictions were upheld by the Appellate Court. It appears that when the appeal came up for hearing before the learned Sessions Judge, Amravati, the learned counsel for the appellants did not challenge the conviction of the appellants for the offence Under Section 65 (f) of the Act. The learned counsel submitted that the punishment imposed on the appellants by the learned Magistrate was harsh and excessive and that the sentence passed against them be therefore, reduced. Accordingly, the conviction of the appellants was maintained by the learned Sessions Judge. However, the substantive sentence of 3 months imposed on each of them was reduced to rigorous imprisonment for one month. The sentence of fine of Rs. 250/- and the default sentence of imprisonment was maintained. Now the two applicants have preferred this application in revision challenging the order passed by the Sessions Judge, Amravati.
3. When rule was issued on this revision application, notice for enhance- ment also came to be issued, Criminal Revision Application No. 157 of 1976 is in respect of these suo motu proceedings for enhancement.
4. According to the prosecution, P. S. I. Gadge (P. W. 3) on 10-2-1973 at about 3 p. m. received information that applicant No. 1 Janrao s/o Balaji Tajane was distilling illicit liquor. He, therefore, called the panchas and accompanied by his staff members and the panchas, went to village Hingangaon. There he called one more panch. He went to the house of the applicant Janrao. He called him out, Thereafter applicants Nos. 1 and 2 came out of the house. After giving search, the raiding party went inside the house. In the house they found the running still as described in the panchanama Ex. 19. The P. S. I. destroyed the still and seized all the articles as per seizure memo panchanama Ex. 19. There was one brass pot which bore the name of Ravindra kumar Janrao Tajane. This was the name of the son of accused Janrao. According to the prosecution, the P. S. I found some illicit liquor in the courtyard. He seized the liquor bottles as per seizure memo Ex. 26 and sealed those bottles. One Laxman Bablaji Hendve was joined as accused No. 3 in the case along with the present two applicants. This Laxman Bablaji Hendve was not present at the spot. The house is owned by Laxman accused No. 3 who is the father-in-law of accused No. 1. The P. S. I registered the offence and after investigation, the three accused came to be charge-sheeted for the offence Under Sections 65 (f) and 66 (1) (b) of the Act. As the learned Magistrate found that there was no evidence against accused No. 3 he acquitted him of both the offences. However, as stated above, he convicted the two applicants for an offence Under Section 65 (f) of the Act and relying upon the ruling in (1975) 77 Bom LR 162, acquitted both the accused Under Section 66 (1) (b) of the Act.
5. As stated above, in the appeal preferred against this order of conviction and sentence in the Sessions Court at Amravati, the order of conviction was not challenged and the only submission made was in respect of the reduction in the sentence. The learned Sessions Judge accordingly confirmed the order of conviction in respect of both the applicants and reduced their sentence as stated above.
6. Now, in this application for revision, Mr. B. T. Patil, the learned counsel for the applicants submitted that the offence Under Section 65 (f) of the Act was not proved against both the applicants. According to him, the house in question is owned admittedly by accused No 3, that there was no evidence in the case that any member of raiding party saw the two applicants actually conducting the still, that all the evidence against the two applicants consisted of the fact that after the P.. S. I. called accused No. 1 out, both the applicants came out from inside the house. This, according to the learned counsel for the applicants was not sufficient to prove that the two applicants were concerned with the working still that was according to the prosecution, being conducted in the house. It was then contended that the applicants were acquitted of the offence Under Section 66 (1) (b) of the Act and that therefore, their conviction Under Section 65 (f) of the Act was not proper and legal. Lastly it was submitted that the statements of all the three accused were jointly recorded by the learned Magistrate and this according to the learned counsel, has vitiated the order of conviction recorded against the applicants.
7. As is indicated above, both the applicants did not challenge the order of conviction recorded against them at the appellate stage. Their learned counsel did not challenge the conviction of the applicants and only prayed for reduction in the sentence. Normally, therefore, it would not have been proper to interfere with the order of conviction. However, in respect of applicant No. 2 it will be seen that there was no material in evidence on the basis of which conviction could have been recorded against him. All that the evidence shows is that after the P. S. I. called applicant No. 1 out, applicant No. 2 also came out of the house. It is not the case of the prosecution that applicant No. 2 owned the house or resided therein. In view of this position, in the absence of any other incriminating circumstance against applicant No. 2, the conviction recorded against applicant No. 2, will, in my view, be unsustainable. Mr. Patil, the learned counsel for the applicants, relied upon the decision of a Single Judge of this Court which is found at Note No. 26 in Gendlal v. State 1973 Mh LJ 15 in Criminal Revn. Appln. No. 201 of 1971, decided on 19-1-1972. The facts in that case were identical to the facts in this case so far as applicant No. 2 is concerned. I, therefore, find that the conviction recorded against applicant No. 2 is unsustainable, and must be set aside.
8. The case of applicant No. 1, however, stands on a different footing. It is in evidence that he is the son-in-law of accused No. 3 who owns the house. The evidence on record shows that in the articles that were seized from the working still, one of the pots that was found, bore the name of Ravindra kumar Janrao Tajane, who is said to be the son of applicant No. 1. It is not disputed that Ravindra kumar is the son of applicant No. 1. It was the case of applicant No. 1 that he does not reside in the house of accused No. 3 in which the working still was going on, but that he resides in a separate house. A suggestion wag made to the P. S. I. that P. S. I. brought this brass pot (Gund) from the mother of Ravindrakumar, i. e. the wife of accused No. l from some other house. It is not disputed that this pot, which was seized out of the articles of the working still, bore the name of the son of applicant No. 1. There is no satisfactory evidence on record to show that applicant No. 1 stays in some other house. The case of applicant No. 1, therefore, is not covered by the ratio in the ruling of this High Court, cited above. In addition to the fact that he came out of the house when he was called out by the P. S. I,, there is this circumstance against him viz. that the brass pot bearing the name of his son was found in the articles that constituted the working still. It cannot, therefore, be said that there was no material on the basis of which the conviction could have been recorded against applicant No. 1,
9. The next contention raised is that the applicants were acquitted of the offence Under Section 66 (1) (b) of the Act, relying upon the ruling of this Court in (1975) 77 BLR 162 and that therefore, they could not be convicted for the offence Under Section 65 (f) of the Act. The argument is that if it was not proved that the liquor that was seized was prohibited liquor, it cannot be said that the applicants were manufacturing prohibited liquor. It is not possible to accept this argument. It has been observed in Amar Tharumal Rajpal v. State of Maharashtra (1975) 77 Bom LR 162:
Where the prosecution wants to establish that an accused has committed the offence of possession of liquor Under Section 66 (1) (b) of the Bombay Prohibition Act, 1949, it should not only show that the accused was in possession of contraband liquor which contained alcohol but it should also have to show that such a variety, which was in possession of the accused, was not of the kind exempt Under Section 24-A of the Act. Where, therefore, the Chemical Analyser's report merely stated that the sample contained 18 per cent v/v of ethyl alcohol in water and there was no expert evidence to show that it was of a variety the use of which was prohibited under the law, it was held that, under such circumstances, the burden of proof was not properly discharged by the prosecution.
This decision overlooks the provisions in Section 103 of the Bombay Prohibition Act, 1949. Section 103 provides:
In prosecution under any of the provisions of this Act, it shall be presumed without further evidence, until the contrary is proved, that the accused person has committed an offence under this Act in respect of any intoxicant, hemp, mhowa flowers or molasses or any still, utensil, implement or apparatus, whatsoever for the manufacture of any intoxicant.
Intoxicant is defined in Section 2 (22) of the Act as meaning any liquor, intoxicating drug, opium or any other substance which the State Government may, by notification in the official Gazette declare to be an intoxicant. It would appear from the above provisions that once the prosecution proves that the liquor was intoxicant as defined Section 2 (22) of the Act, the burden is shifted to the accused to establish that the liquor which was attached was within one of the classes of Section 24-A. This view is supported by the unreported decision of the Division Bench of this Court in Criminal Appeal No. 1259 of 1973 decided on 20-1-76: (1976) 2 UCR (Bom) 476 (Gopal Ramdas Nayar v. State of Maharashtra). In view of this decision of the Division Bench, the learned Magistrate was wrong in relying upon the decision in Amar Tharumal's case (supra). Apart from that, Mr. Badar, the learned counsel for the State rightly submitted that the offence Under Section 65 (f) of the Act can be proved; even without showing that liquor or prohibited liquor was found in the articles that were seized which constituted the working still. He submitted that if there was sufficient material on record to show' that the accused had in their possession materials or still for the purpose of manufacturing any intoxicant, the provisions in Section 65 (f) of the Act would be attracted. He submitted that liquor may not be| found when the still is just started, but still if it is shown that there were mate- rials or still for the purpose of manufacturing any Intoxicant, the offence would be complete. Now in this case, P. S. I. has stated that in the house he found a running still. The description of that still has been elaborately given in the panchanama Ex. 19. Along with the articles of the still, according to P. S. I. some illicit liquor was found in the courtyard. The defence of the applicant is one of total denial. The description of the articles given in the panchanama Ex. 19 furnishes sufficient material to show that what was being conducted must be the working still for distilling an intoxicant. It is said that there was boiling Moha wash in a drum, about 4 Kg. in quantity. P. S. I. Gadge has also deposed to the same effect. As is stated above, the defence was one of total denial and there is no explanation that the still was being worked for any other purpose. As pointed out above, the order of conviction was not challenged in the appellate Court, For all these reasons, it is difficult to entertain the plea of the applicants at this revisional stage that the materials found in the house were not proved to be there for the purpose of manufacturing any intoxicant. On the material on record it will have to be held that the materials for the purpose of manufacturing intoxicant were found in the house, and one of the articles found in those materials was a brass pot bearing the name of the son of the applicant No. 1. It is, therefore, not possible in this Revision Application to interfere with the order of conviction recorded against applicant Janrao,
10. The last point urged on behalf of the applicants was that the learned Magistrate recorded the statements of the applicants jointly. The statement of each of the accused was not recorded separately and that this has vitiated the order of conviction. Reliance is placed for the applicants upon the unreported decision in Mussadi v. Raghubir Singh AIR 1955 NUC 5851. That was a case tried summarily Under Section 447 of the Indian Penal Code. The conviction of the accused in the case was set aside on consideration of various infirmities in the procedure adopted by the learned Magistrate, and also in the approach of the learned Magistrate. The Court did not consider as to what the intention of the accused was in committing trespass. Only number of section of the offence was noted, but not the date of commission. The record also did not show whether the accused was informed of the substance of accusation against him and the statements of both the accused were recorded jointly. In view of all these cumulative circumstances, the conviction of the accused was set aside,
11. Mr. Patil, the learned counsel for the applicants, relied upon another ruling of the Mysore High Court in Akil Pasha v. State of Mysore That was a case where the accused had pleaded guilty and the plea of guilty of several accused was recorded at one place only. It was held that this procedure was in contravention of Sections 242 and 243 of the Cr.PC (1898). It was pointed out in that case that the joint statement incorporating the plea of guilty of the accused could not be said to be a statement recorded 'as nearly as possible' in the words used by the accused. The facts in both these cases are not identical to the facts of this case,
12. I may add, we have a ruling of our High Court reported in Balkrishna Anant Hirlekar v. Emperor AIR 193l Bom 132 : 32 Cri LJ 572. It appears that in that case at the close of the prosecution case the statements of the accused Under Section 342 Cr.PC were recorded jointly in a single paragraph. There this Court observed (at p. 575 of Cri LJ):
It has repeatedly been held by this Court that failure to record the statement of an accused person is an illegality which vitiates the trial, and it is evident that a joint statement in the form in which we find it in this case, is not a compliance with the section, for it is quite conceivable that some of the accused may have had a different defence.
Mr. Badar, the learned counsel for the State, submitted that in the instant case the defence of the accused was one of total denial and according to him the observations of the Supreme Court in Makah Jivan v. State of Gujarat : 1971CriLJ1310 , would apply. It has been observed there (at p. 1313 of Cri LJ):
It is, however, well settled that every error or omission in complying with Section 342 does not necessarily vitiate the trial. Errors of that type fall within the category of curable irregularities and the question whether the trial has been vitiated depends in each case upon the degree of error and upon whether prejudice has been or is likely to have been caused to the accused.
It must be said that that was not a case where joint statement of various accused was recorded. That was a case where some defects were pointed out in the recording of statement of single accused Under Section 342 Cr.PC This ruling also, therefore, would not apply to the facts of this case.
13. Any way, as I have pointed out earlier, the applicant No. l did not make any grievance on the point of recording joint statement of all the accused, either in the trial Court or in the appellate Court. Besides, it must be pointed out that the defence of this applicant and also of other accused in the case was one of total denial. It is submitted for the applicant No. 1 that a question should have been asked to the applicant No. 1 to explain the prosecution case that he resided in the house of accused No. 3, if the prosecution Wanted to rely upon that circumstance and in that case applicant No. 1 would have given some suitable reply. It is true that no such question has been asked to applicant No. 1. However, a suggestion has been made in the cross-examination of P. S. I Gadge that applicant No. 1 resided in some other house from where the brass pot bearing the name of his son was recovered. This shows that even though not in reply to question Under Section 342, Cr.PC the accused had the opportunity to give that explanation and that explanation was sought to be given in the cross-examination of P. S. I. Gadge. It is true that the procedure followed by the learned Magistrate in recording the joint statement of all the accused is highly objectionable and he should have proceeded to record the statement of each of the accused separately. However, in the peculiar circumstances of the case, I find that no prejudice has been caused to the applicant No. 1.
14. In the result, so far as applicant No. l is concerned, all the points raised on his behalf by the learned counsel, have no merit. The order of conviction recorded against him is, therefore, liable to be confirmed.
15. The next question is whether the sentence passed against him should be enhanced. As is stated above, on the learned counsel for applicant No. 1 stating in the appellate Court that he did not challenge the conviction but that he wanted to pray for reduction in the sentence, the learned Sessions Judge was pleased to reduce the rigorous imprisonment to one month only. The question now before me is whether the sentence passed against applicant No. 1 should be enhanced.
16. It appears from the record that the applicant No. 1 is a young man of the age of 25 years and that the case has been pending against him since 1973. In these circumstances, I am inclined to hold that no enhancement is called for.
17. In the result. Criminal Revision Application No. 153 of 1976 is partly allowed. The order of conviction and sentence passed against applicant No. 2 is set aside. His bail bond stands cancelled. The fine, if paid by him, shall be refunded to him.
18. The order of conviction and sentence passed against applicant No. 1 by the learned Sessions Judge, Amravati, is confirmed. He shall surrender to the bail.
19. Criminal Revision Application No. 157 of 1976 for enhancement fails and is dismissed.