1. This is a reference tinder Section 438, Criminal P.C., made by the learned Sessions Judge of Bareilly, and arises out of an application for revision, filed by Sita Ram in the Court of the Sessions Judge, against his conviction and the sentence of fine of Rs. 15 under Section 63, U.P. Excise Act.
2. The house of Sita Ram was searched by the Excise Inspector on 4th February 1936. An earthen pitcher of fermented wash, weighing about 15 seers, was recovered from the room of the accused. A bottle containing a quarter chitank of liquid, which was alleged to be illicit liquor, was also found. This has not how-ever been subjected to chemical test, and it is impossible to say that it was liquor. This fact should therefore be left out of account. The wash was found, on examination, to contain 12.8% of proof spirit. Sita Ram was prosecuted and convicted by a Magistrate for an offence under Section 63, Excise Act, and sentenced to a fine of Rs. 15, The plea of the accused that the earthen pitcher contained suger-cane juice, which was intended to be transformed into vinegar, was not accepted. Sita Ram applied to the Sessions Judge of Bareilly in revision.
3. The learned Sessions Judge has expressed the opinion that the accused cannot be held to be guilty under Section 63, which applies to cases in which the accused is found to be in possession of any quantity of excisable article, knowing the same to have been unlawfully imported, transported or manufactured or knowing the prescribed duty not to have been paid thereon. The learned Judge rightly points out that the mere fact that wash with an alcoholic content of 12.8% is found in the possession of a person falls short of the requirements of Section 63, because knowledge of the accused that the liquid had been 'unlawfully imported, transported or manufactured' has not been proved by any evidence. The learned Judge then proceeds to consider whether Sita Ram was guilty of an offence under Section 60, which penalises possession of any excisable article or materials for the purpose of manufacturing any excisable article in contravention of the Act, or of any rule or order made under the Act, or of any licence, permit or pass obtained under the Act. He seems to have felt considerable difficulty in arriving at a definite conclusion, and concluded with the remark:
My own view as a layman is however that mere possession of fermented wash cannot be proof of intention to use it for distillation and that the conviction of the present applicant is therefore unsustainable under any section of the Act.
4. The case dame on for hearing before this Bench, and from the copy of a letter of the Excise Commissioner addressed to all the District Officers in U.P. and appended to the judgment of the Sessions Judge, it appeared that:
In most oases, where the plea of the accused is that the mixture was meant for the manufacture of vinegar, he (the chemical examiner) will be able to tell by examining the proportion of acid to alcohol whether the mixture was meant for the formation of vinegar or for the manufacture of illicit spirit.
5. Accordingly we called for a report from the chemical examiner as to whether the sample taken from the liquid found in possession of the accused was such fermented wash as could be definitely pronounced to have been intended for distillation of liquor. Unfortunately, the chemical examiner could not express any definite opinion whether the wash in question in this case was meant for distillation of liquor. He has taken the opportunity of pointing out
that it is not always possible to say by mere chemical examination whether a wash is meant for illicit distillation or vinegar manufacture, for the starting substance for both is the same, a dilute solution of alcohol.
6. It is clear that the Excise Commissioner's view, to which reference has already been made, is not accurate.
7. We also gather from the report of the chemical examiner, as also from the letter of the Excise Commissioner that up to a point the chemical changes which take place in a wash intended for the manufacture of vinegar and in that intended for illicit distillation are identical. We have not found any authority for the proposition that fermented wash intended for the manufacture of vinegar will not in most cases contain 12.8% of proof spirit. The presence of alcohol to that extent is therefore no proof by itself that the wash was intended for illicit distillation of liquor. If that fact is supplemented by other evidence such as the recovery of implements of distillation or by some other circumstances indicating that the liquid must have been intended for illicit distillation, the position may be different. In the present case, all we have to go upon is the fact that a pitcher of fermented wash containing 12.8% alcohol was found in the possession of the accused, and the question is whether Sita Ram should be held guilty of an offence under Section 60, Excise Act.
8. As already mentioned, the section penalises, inter alia, possession of any excisable article (Clause a), or materials for the purpose of manufacturing any excisable article other than tari (Clause f). 'Excisable article' is defined in Section 3(13) as 'any liquor or intoxicating drug, as defined by this Act.' 'Liquor' is defined in Section 3(11) as meaning
intoxicating liquor and includes spirits of wine, spirit, wine, tari, paohwai, beer and all liquid consisting of or containing alcohol : also any substance which the Local Government may by notification declare to be liquor for the purposes of this Act.
9. I have given my careful consideration to the phraseology of the definition of 'liquor,' and am driven to the conclusion that the definition has been advisedly made as wide as human ingenuity could make it. Section 71 of the Act provides that:
In every prosecution under Section 60 it shall be presumed, until the contrary is proved, that the accused person has committed an offence punishable under that section in respect of : (a) any excisable article, or (b) any still, utensil, implement or apparatus whatsoever for the manufacture of any excisable article other than tari or (c) any materials which have undergone any process towards the manufacture of an excisable article or from which an excisable article has been manufactured for the possession of which he is unable to account satisfactorily.
10. There is no escape from the position that, if a person is found in possession of a fermented wash containing any percentage of alcohol, he must be held to be in possession of materials which have undergone any process towards the manufacture of an excisable article. It is undeniable that liquor can be distilled from a fermented wash which is therefore a material for the manufacture of an excisable article; and when it is found to contain 12.8% or even less of alcohol, it has undergone a process towards the manufacture of liquor and therefore of an excisable article. Like the definition of 'liquor', Section 71 is so comprehensive as to leave no room for the contention that the prosecution has failed to establish anything which the law requires of it. It should be noted that no human agency or volition is needed to make the fermented wash a material which has undergone a process towards manufacture. The conjoint effect of the definition of 'liquor' and therefore of 'excisable article' and Sections 60 and 71 of the Act may lead to highly undesirable results from a judicial point of view; but this Court can not refuse to give effect to plain provisions of law because it disapproves of the policy underlying them. The object of the Legislature in making these drastic provisions was to subordinate the interest of an ordinary citizen to the needs of excise administration.
11. The extent to which protection is given by the Act is to be found in Section 76, which empowers the Local Government to
exempt any person or class of persons, or any excisable article, wholly or partly, from the operation of all or any of the provisions of this Act or of all or any of the rules made under this Act, either throughout the United Provinces or in any specified area comprised therein or for any specified period or occasion.
12. It is open to the Local Government to make a rule exempting those whose object is merely to manufacture vinegar for private consumption or for sale; but in the absence of such rule, it is open to the Excise Department to prosecute any one who is found in possession of fermented wash, even though it may be no more than a pitcherful and throw the burden on the accused to prove his innocence. I feel constrained to remark that, unless the Local Government comes to the rescue, in the exercise of its powers under Section 76, the law as it now stands can be abused with more or less impunity.
13. The policy which the Excise Department has hitherto pursued is that if a person is found to be in possession of fermented wash containing not more than 2 per cent, of proof spirit, he should not be prosecuted, but anyone found in possession of that liquid containing greater quantity of alcohol should be prosecuted. This line of demarcation seems to be quite arbitrary. As already mentioned earlier in this judgment, a bona fide manufacturer of vinegar may be in possession of wash containing as much as 10 or 12 per cent, of proof spirit. The learned Sessions Judge seems to be under the impression that cases like the one we have before us are complicated by some executive order which was issued by the Excise Commissioner to the Government of the United Provinces. I do not think that such orders in any way affect the law which the Courts are called upon to administer. They may guide the officers of the Excise Department in deciding whether a particular person should or should not be prosecuted; but if they chose to prosecute in disregard of those orders, the Court cannot refuse to convict only because the executive orders were not properly obeyed.
14. Coming to the facts of the present case, I find no evidence to prove that Sita Ram had any intention of manufacturing liquor. A pitcherful of fermented wash is likely to be found in a large number of families in any big town, intended no doubt for the preparation of vinegar. No implement of distillation was found in Sita Ram's house. His plea that the wash was intended for the manufacture of vinegar and not 'for the purpose of manufacturing any excisable article', is an explanation which in the circumstances of this case I readily accept. Accordingly I hold that the presumption arising under Section 71, Excise Act, has been rebutted to this extent. This finding however may lead to his acquittal under Section 60(f), but the question remains as to whether he is nevertheless guilty under Section 60(a). He was undoubtedly in possession of wash which on examination was found to contain 12.8 percent, alcohol and which is 'liquor' as defined in the Act, and therefore an excisable article. If he was in possession of it in the legal sense, he is guilty under Section 60(a), no matter what explanation he offers. All that Section 60(a) requires is that the accused should be in possession of an excisable article. As already stated, his object is perfectly immaterial so long as his possession of liquid is punishable. I am however of opinion that a penal provision should be construed strictly and that the word 'possess' occurring in Section 60(a) should be taken in the strict legal sense. As such it does not imply mere physical detention. In his work on jurisprudence, Salmond says:
In the whole range of legal theory there is no conception more difficult than that of possession. The Roman lawyers brought their usual acumen, to the analysis of it, and since their day the problem has formed the subject of a voluminous literature, while it still continues to tax the ingenuity of jurists. Nor is the question one of mere curiosity or scientific interest, for its practical importance is not less than its difficulty.
15. After a lengthy discussion of the subject in which the learned author analyses the constituents of possession, he lays stress on animus possidendi, and says (p. 242, Edn. 4):
The intent necessary to constitute possession is the intent to appropriate to oneself the exclusive use of the thing possessed.
16. Similarly, Dr. Markby observed:
There are a physical and a mental element in the legal conception of possession and in order to constitute possession in a legal sense, there must exist not only the physical power (or rather the possibility) to deal with the thing as we like and to exclude others, but also the determination to exercise that physical power or control on our own behalf.
17. I think that a person cannot be said to be in possession of liquor, unless he is conscious of the fact that the liquid in his possession contains alcohol. The mere fact that in the process which takes place in the formation of vinegar from wash there comes a stage when it temporarily contains alcohol does not justify the assumption that the person having possession of the wash had possession of a liquid consisting of or containing alcohol. It should be noted in this connexion that the alcoholic condition of the liquid disappears by the time the wash becomes vinegar. A man in the position of Sita Ram, or, for the matter of that any average man not possessing any knowledge of the chemical changes which take place in the formation of vinegar, cannot be considered to be conscious of all the chemical changes which are taking place in the pitcherful of fermented wash in his possession.
18. The case is not materially different from the one in which an excisable article is introduced in a man's house or pocket without his knowledge. He cannot be said to be in possession of it in the legal sense. The fact that an excisable article is traced to his custody because of human agency or chemical action in the liquid, of which he is unaware, makes no difference. But Section 71 throws the burden of proving want of knowledge on him. In this particular case I hold that the proved circumstances of the case rebut the presumption arising from Section 71. For these reasons I would hold that Sita Ram is not guilty of an offence under Section 60(a) also. As already held, his conviction under Section 63 cannot stand. I would therefore acquit him and direct that the fine if paid be refunded.
19. I concur in the final conclusion of my learned brother that the accused should be acquitted of the offence under Section 63, Excise Act, with which he had been charged.
20. That section requires possession of an excisable article without lawful authority and also with knowledge that the same has been unlawfully imported, transported or manufactured or that the prescribed duty has not been paid thereon. As no utensils, implements, apparatus or other materials were found which would suggest that manufacture of liquor was intended and as the circumstances of this case show that the accused was probably attempting to manufacture vinegar, I am prepared to agree that the requirements of Section 63 have not been fulfilled.
21. The accused had not been charged with any offence under Section 60 and therefore it is perhaps difficult to hold that there was his 'prosecution under Section 60' within the meaning of Section 71, Excise Act. If the conviction is now altered to one under Section 60 and a presumption drawn against him under Section 71, he may well be prejudiced by his not having had an opportunity to adduce sufficient evidence. In any case the presumption arising from the possession of an excisable article for which he is unable to account satisfactorily is not absolute, but is rebuttable and it can be rebutted not only by direct evidence but also by circumstantial evidence.
22. The difference between Section 63 and Section 60(a) is that while the former requires knowledge of such possession, the latter does not do so. If the liquid be an excisable article and the accused is knowingly in possession of that liquid, then in my opinion it is immaterial for purposes of this sub-section whether he is actually aware of its ingredients or not. What the section requires is possession of an excisable article, that is to say any liquor or intoxicating drug as defined by this Act : see Section 3(13), and liquor under Section 3(11) means intoxicating liquor and includes spirits of wine, spirits, etc. and all liquids consisting of or containing alcohol. In marked contrast with Section 66, Section 60 merely requires proof of possession of an excisable article and not actual knowledge of the percentage of alcohol in it. If therefore the accused was in possession of a liquid and the circumstances make it probable that he was aware of his possession of such liquid, then he would be deemed to be in possession of liquor if the liquid is intoxicating liquor including a liquid consisting of or containing alcohol, even though he may not be aware of the latter fact.
23. The trouble in this case arises from the very wide language employed for defining 'liquor'. The definition is capable of two possible interpretations. One may be that the Legislature intended to make every liquid which contained any quantity of alcohol howsoever small a liquor within the meaning of Section 3(11). In this view even a millionth part of a drop of alcohol in a gallon of water would make the whole liquid an excisable article and the possession of it a criminal offence, even though the person in possession be wholly unaware of the existence of the almost infinitesimal quantity of alcohol in it. It is certainly doubtful whether the Legislature had any such intention and this is hardly a reason, able interpretation. The other interpretation may be that liquor means intoxicating liquor, that is a liquor which is fit for human consumption and has an intoxicating effect. If the nature and composition of the liquid be such that it cannot have an intoxicating effect at all, it would not be liquor within the meaning of the sub-section even though it happens to contain some negligible quantity of alcohol in it.
24. The Local Government can easily remove this ambiguity. There are several sections in the Act like Sections 15, 20 and particularly 76, under which the Local Government have powers to exempt certain classes of excisable articles from the provisions of the Act. It would be very easy to declare by notification that liquids containing a certain fixed percentage of alcohol would not be excisable articles under this Act. Whether the percentage for purposes of exemption should be 2 per cent, or more is a matter for the Local Government to consider. Some such declaration is urgently needed in view of the wide language of the definition of 'liquor' if the sub-section were to be interpreted literally.
25. In the present case however 12.8 per cent, of proof spirit seems to be a fairly high percentage. As the accused had not been prosecuted under Section 60 and he had no opportunity to lead evidence to rebut the presumption arising from Section 71, I do not think that in the present case we should alter the conviction from one under Section 63 to that under Section 60(a).
26. We accept the reference and setting aside the conviction and the sentence passed on the accused, we acquit him of the charge under Section 63, U.P. Excise Act. The fine if paid should be refunded.