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Chhaganji Khengarji and anr. Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Revn. Appln. Nos. 464, 465 and 466 of 1966
Judge
Reported inAIR1970Guj131; 1970CriLJ956; (1970)0GLR573
ActsBombay Prohibition Act, 1949 - Sections 11, 13, 66(1) and 115-A; ;Evidence Act - Sections 106 and 114
AppellantChhaganji Khengarji and anr.
RespondentState of Gujarat
Appellant Advocate M.R. Barot, Adv.
Respondent Advocate K.M. Chhaya, Asst. Govt. Pleader
Cases ReferredCaldwell v. Jones
Excerpt:
.....66 (1) (b) - revision filed against said order - evidence on record did not prove that accused had consumed liquor at place where he was found - prosecution failed to establish that accused consumed liquor within limits of gujarat state - order passed by session judge liable to be set aside. - - state of ahmer, 1956 scr 199 =(air 1956 sc 404) where their lordships of the supreme court laid down the same principle, namely, that section 106 of the evidence act does not abrogate the well-established rule of criminal law that except in very exceptional classes of cases the burden that lies on the prosecution to prove its case never shifts and section 106 is not intended to relieve the prosecution of that burden. they also observed that, on the contrary, that section seeks to meet..........clause (b) of sub-section (1) for the consumption of an intoxicant, it is alleged that the accused person consumed liquor, and it is proved that the concentration of alcohol in the blood of the accused person is not less than 0.05 per cent, weight in volume then the burden of proving that the liquor consumed was a medical or toilet preparation, or an antiseptic preparation or solution, or a flavouring extract, essence or syrup, containing alcohol, the consumption of which is not in contravention of the act or any rules, regulations or orders made thereunder, shall be upon the accused person, and the court shall in the absence of such proof presume the contrary.'8. there is no dispute that such a presumption arose against each of these petitioners in these revision petitions and the.....
Judgment:

1. Common questions of law and facts arise in all these three revision petitions and hence, they are being disposed of by this judgment.

2. In Criminal Revision Application No. 464 of 1966, petitioner Chhaganji was prosecuted for offences punishable under Sections 85(1)(3) and 66(1)(b) of the Bombay Prohibition act, 1949, which will be hereinafter referred to as the Act.

3. The prosecution story was that on 13th March, 1966 at about 1-30 p.m. the petitioner was found drunk near the hospital in a public place in Deesa town, district Banaskantha and he had also consumed liquor without a pass or permit. Learned Judicial Magistrate, First Class, Mr. N. G. Butala, in that Criminal Case NO. 380, found that the petitioner was not found under the influence of drink. He was not found intoxicated. He, therefore, acquitted him of the offence under Section 85(1)(3) of the Act. He further found that the petitioner had consumed liquor without pass or permit. In view of that finding of his, he convicted him of an offence punishable under S. 66(1)(b) of the Act and sentenced him to suffer three months' rigorous imprisonment and to pay a fine of Rs. 500/- and in default of payment of fine, to undergo one and a half months' further rigorous imprisonment. Against that order of conviction and sentence recorded against the petitioner, the petitioner filed Criminal Appeal No. 49 of 1966 in Sessions Court. Banaskantha District at Palanpur. Learned Sessions Judge, Palanpur, Mr. M. I. Pandya, who hears that appeal, dismissed it, upholding the order of conviction and sentence. Against that order, this revision application has been filed by the petitioner in this Court.

4. In Revision Application No. 465 of 1966, the petitioner was prosecuted for offences punishable under Sections 85(1)(3) and 66(1)(b) of the Act. The prosecution story was that the petitioner was found drunk in a public place at Kumbhar Vas in Deesa town, District Banaskantha, on 17th April, 1966 at 7-30 p.m. and he had further consumed liquor without pass or permit. The learned Judicial Magistrate First Class in that Criminal Case No. 381 of 1966, found that the petitioner was not found drunk. He was not intoxicated. He found that he had consumed liquor without pass or permit. He, therefore, acquitted the petitioner of the offence punishable under Section 85(1)(3) of the Act and convicted him of the offence punishable under Section 66(1)(b) of the Act and sentenced him to suffer three months' rigorous imprisonment and to pay a fine of Rs. 500/- and in default of payment of fine, to undergo one and a half months' further rigorous imprisonment. Against the order of conviction and sentence, the petitioner filed Criminal Appeal No. 37 of 1966 in the Court of Sessions Judge, Banaskantha District at Palanpur. The learned Sessions Judge who heard that appeal, dismissed that appeal, confirming the order of conviction and sentence passed against the petitioner. The petitioner has, therefore, filed the present revision petition in this Court.

5. In Criminal Revision Application No. 466 of 1966, the petitioner was prosecuted for offences under Sections 85(1)(1), 85(1)(3) and 66(1)(b) of the Act. The prosecution story was that on 19th April, 1966, at about 9-30 p.m., the petitioner was found drunk near the old S. T. Bus stand in a public place in Deesa town. District Banaskantha. He was unable to take care of himself. He had consumed liquor without pass or permit. The learned Judicial Magistrate, First Class, Deesa, in that Criminal Case No. 441 of 1966, convicted the petitioner of offences punishable under Sections 85(1)(1) and 85(1)(3) of the Act and sentenced him to suffer seven days' rigorous imprisonment and to pay a fine of Rs. 25/- and in default of payment of fine, to undergo seven days' further rigorous imprisonment. He also convicted the petitioner of an offence punishable under Section 66(1)(b) of the Act and sentened him to suffer three months' rigorous imprisonment and to pay a fine of Rs. 500/- and in default to payment of fine, to undergo one and a half months' further rigorous imprisonment, Substantive sentences were ordered to run concurrently. Against that order of conviction and sentences passed against the petitioner, he filed Criminal Appeal NO. 50 of 1966 in the Court of Sessions Judge, Banaskantha District, at Palanpur. Learned Sessions Judge, Mr. M. I. Pandya, who heard that appeal, dismissed it confirming the order of conviction and sentences passed against the petitioner. The petitioner has, therefore, filed this revision application in this Court.

6. In all these three revision petitions, Mr. Barot, learned Advocate, who appeared for the petitioners, submitted that the order of conviction and sentence passed against each of the petitioners in these revision petitions, cannot be sustained in law. This argument of his is based on direct or circumstantial, led by the prosecution to prove that each petitioner in these revision petitions, consumed liquor within the limits of Gujarat State where liquor cannot be consumed without pass or permit. It has been urged by him that Deesa is situated in the neighbourhood of an area where there is no such prohibition. It was the duty of the prosecution to prove the circumstances to show that each petitioner in these revision petitions had consumed liquor in the prohibited area in the State of Gujarat. It is submitted by him that the learned Sessions Judge decided against the petitioner on this point, relying upon the provisions of Section 115-A of the Act. It has been submitted by him that after the Statute book, the only problem solved was regarding the jurisdiction of the Court to try such an offence, if a person who has consumed liquor is found in a place situated within the jurisdiction of that particular Court. It has not solved the problem that the prosecution has been committed. The offence in question can be said to have been committed by the offender if it is proved that he has consumed liquor in contravention of the provisions of the Act. It was, therefore, necessary for the prosecution to prove that liquor was consumed within the prohibited area, i.e, within the are of the State of Gujarat, where liquor cannot be consumed without the necessary pass or permit.

7. Mr. Chhaya, learned Assistant Government Pleader, who appeared for the State, submitted that it would be wellnigh impossible for the prosecution to prove that a particular offender consumed liquor at a particular place. The prosecution could prove only that the person was found having consumed liquor and for the proof of it, the prosecution can rely upon the evidence of Chemical Analyser's analysis that alcohol was found in the blood of the offender in excess of the prescribed limits and eventually, in view of the provisions of Section 66(2) of the Act, rebuttable presumption can be raised that the offender had consumed prohibited liquor. It was urged by him that the fact whether the offender consumed liquor at a particular place was a fact within his special knowledge and hence, in view of the provisions of Section 106 of the Evidence Act, it was for the offender to prove that he had consumed liquor at any place outside the limits of the State of Gujarat. It was further submitted by Mr. Chhaya that the offender in each of these revision petitions was found in Deesa town in a public place according to the finding arrived at by the lower Courts. In each of these cases, it was proved that in the blood of each of the offenders ethyl alcohol found was more than .05% W/V. In view of that fact, presumption arose against each of them as indicated by sub-section (2) of Section 66 of the Act. That sub-section runs as under:-

'Subject to the provisions of sub-section (3) where any trial of an offence under clause (b) of sub-section (1) for the consumption of an intoxicant, it is alleged that the accused person consumed liquor, and it is proved that the concentration of alcohol in the blood of the accused person is not less than 0.05 per cent, weight in volume then the burden of proving that the liquor consumed was a medical or toilet preparation, or an antiseptic preparation or solution, or a flavouring extract, essence or syrup, containing alcohol, the consumption of which is not in contravention of the Act or any rules, regulations or orders made thereunder, shall be upon the accused person, and the Court shall in the absence of such proof presume the contrary.'

8. There is no dispute that such a presumption arose against each of these petitioners in these revision petitions and the findings arrived at by the two Courts below that the petitioner in each of these revision petitions has not been able to rebut that presumption, are correct. There is, therefore, no doubt that the prosecution has proved that the petitioner in each of these revision petitions consumed prohibited liquor. It is an undisputed position that each of these petitioners was consumed in such condition in Deesa town, i.e., within the jurisdiction of Deesa Judicial Magistrate, First Class.

9. Section 115-A of the Act which is material for our purposes, runs as under:

'Notwithstanding anything contained in the Code of Criminal Procedure, 1898, an offence of consumption of any intoxicant or hemp specified in Cl (b) of sub-s (1) of Section 66, may be tried by a Magistrate having jurisdiction either at the place in which the offence was actually committed or at any place in the State in which the offender may be found.'

Ordinarily, the Court within whose jurisdiction the offence was actually committed, would have jurisdiction to try such an offence. But by engrafting this section and bringing it in the Statute Book, the Court within whose jurisdiction such an offender has been found is also empowered to try such an offence. That section only solves the problem regarding jurisdiction.

10. The further problem, namely, whether the offender consumed liquor within the prohibited area, remained to be solved. Section 11 of the Act reads:-

'Notwithstanding anything contained in the following provisions of this Chapter, it shall be lawful to import, transport, manufacture, bottle, sell, buy, possess, use or consume any intoxicant or hemp .......... in the manner and to the extent provided by the provisions of this Act or any rules, regulations or orders made or in accordance with the terms and conditions of a licence, permit, pass or authorization granted thereunder.'

11. Section 13 of the Act, which is material for our purposes, reads:

'No person shall-

(a) bottle any liquor; for sale;

(b) consume or use liquor; or

(c) xx xx xx

Section 66(1)(b) of the Act reads:

'Whoever in contravention of the provisions of this Act, or of any rule, regulation or order made, or of any licence, permit, pass or authorization issued, thereunder-

(b) consumes, uses, possesses or transport any intoxicant other than opium or hemp.'

It is, therefore, evident that for the establishment of the offence in question, it has got to be proved that a person has consumed or used any intoxicant in contravention of the provisions of this Act or of any rule, regulation or order made, or of any licence, permit, pass or authorization issued thereunder. It is, therefore, evident that if a person has consumed liquor outside the State of Gujarat, where there is no such prohibition, the offence could not be said to have been committed by that person under the Act. It was, therefore necessary for the prosecution to prove that each petitioner in these revision petitions, consumed liquor within the prohibited area within the limits of the State of Gujarat. The prosecution cannot be absolved of that obligation by resorting to section 106 of the Evidence Act or Section 114 of the Evidence Act.

12. A Division Bench of this Court, before this Section 115-A was brought into the Statute book in the Act had to deal with this question in State v. Dhulaji Bavaji, 3 Guj LR 409 = (AIR 1963 Guj 234). J. M. Shelat, J., (as he then was), speaking for the Division Bench, at page 416 (of Guj LR) = (at p. 238 of AIR) made the following pertinent observations, which can be referred to, with advantage at this stage:-

'The learned Assistant Government Pleader next contended that it was within the special knowledge of the accused as to where he consumed liquor and, therefore, under Section 106 of the Evidence Act it would be for the accused to establish that he had consumed liquor at a place where it was not an offence to consume. It is a fundamental principle for our jurisprudence that in a criminal prosecution the onus of proof is upon the prosecution and there is no obligation upon the prisoner of proving facts especially within his own knowledge. Cf. Senevirante v. R., (1936) 3 All ER 36, where their Lordships of the Privy Council were dealing with Section 108 of the Ceylon Evidence Ordinance (No. 14 of 1895) which contained the same provisions as are to be found in Section 106 of our Evidence Act. The same question also arose in Shambhu Nath Mehra v. State of Ahmer, 1956 SCR 199 = (AIR 1956 SC 404) where their Lordships of the Supreme Court laid down the same principle, namely, that Section 106 of the Evidence Act does not abrogate the well-established rule of criminal law that except in very exceptional classes of cases the burden that lies on the prosecution to prove its case never shifts and Section 106 is not intended to relieve the prosecution of that burden. They also observed that, on the contrary, that section seeks to meet certain exceptional cases where it is impossible, or disproportionately difficult, for the prosecution to establish facts which are especially within the knowledge of the accused and which can be proved by him without difficulty or inconvenience. But when knowledge of such facts is equally available to the prosecution if it chooses to exercise due diligence, they cannot be said to be especially within the knowledge of the accused and the section cannot apply. At page 203 of the report, it is observed that the word 'especially' means facts that are pre-eminently or exceptionally within the knowledge of the accused. Their Lordships have then observed that if the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not? Section 106, therefore, cannot be used to undermine the well-established rule of law that, the burden is on the prosecution and that it never shifts. The burden to establish that the offence took place within the jurisdiction of the learned Magistrate was clearly upon the prosecution. It is nowhere stated by the prosecution that even with due diligence they could not find out the place where the offence occurred. As stated by the Supreme Court in Shambu Nath Mehra's case, the knowledge as to where the offence occurred would had (have) been equally available to the prosecution if it had chosen to exercise due diligence and, therefore, such knowledge cannot be said to be especially within the knowledge of the accused. Consequently, Section 106 would not apply.'

In the instant case, it could not be said that it was well-nigh impossible for the prosecution to prove these facts. The prosecution could have proved it by leading circumstantial evidence and could have shown that the circumstances probabilised that this consumption of liquor had taken place within the limits of this State. It would have been then, for the accused to show that he had not consumed liquor within the limits of this State.

13. It has been submitted by Mr. Chhaya that this decision had been given by a Division Bench of this Court before Section 115-A was brought into the Statute Book. As said earlier, engrafting of that section has only solved the problem of jurisdiction of the Court to try such an offence. The Court can try such an offence if a person who has consumed liquor is found at a place within the limits of its jurisdiction. It has not solved any other equally important problem. It has been submitted by Mr. Chhaya that if this is the position of law, then the prosecution would have insurmountable difficulties improving such offences. I do not agree with that submission. No doubt, the prosecution will have some difficulties, but the prosecution can bring forward several circumstances which could probabilise that the offence of consuming liquor was committed within the limits of this State and in that case, the burden will be shifted on to the accused to prove that he had really consumed the liquor outside the limits of this State. If there are any difficulties, the appeal should be to the Legislature and not to the Court.

14. So far as this question is concerned, even after the introduction of S. 115-A in the Act, there has been no material difference. Principle enunciated in the decision given by a Division Bench of this Court, on this point, still holds good and I am bound by that decision.

15. In an unreported decision of this Court in Criminal Appeal No. 1121 of 1964, D/- 1-4-1966 (Guj) Vakil J., had to deal with a similar question, after Section 115-A of the Act was brought into the Statute Book. The relevant observations made are as under:-

'However, the learned Magistrate also acquitted the respondent of the charge under Section 66(1)(b), sub-section (2). It is point doubt that the Medical Officer had taken blood sample of the respondent and had forwarded it to the Chemical Analyser for the test. The report of the Chemical Analyser is on the record which shows that the blood sample of the respondent contained 0.1932 per cent. W/V of Ethyl alcohol. From this it was tried to be urged that the offence under sub-section (2) of Section 66(1)(b) of the Bombay Prohibition Act read with Section 115-A should be taken to have been established. The learned Magistrate, it appears, did not accept this submission, and acquired the accused of that charge also.

16. It is true that it could be presumed that the accused had consumed prohibited liquor because it was proved by the prosecution by the production of the report of the Chemical Analyser that the blood sample of the respondent contained more than 0.05 per cent. W/V of Ethyl Alcohol. But mere raising of that presumption would not prove that he had done so in contravention of the Prohibition Act. That can be proved by establishing Act. That can be proved by establishing that the accused had committed the offence, that is to say, he had consumed alcohol within the prohibited area. The law is well settled that the offence under Section 66(1)(b) would be complete when a person consumes prohibited intexicant but no presumption could be made that the person should be considered to have taken liquor at the place where he is found. Similarly, no presumption could be made that he had consumed the intoxicant within the prohibited area. No doubt now, under Section 115-A of the Act, the Magistrate having jurisdiction at the place where the person is found, is competent to try and convict such a person if found guilty. But the person must, even before such Magistrate, be proved to have committed the offence. The offence would be committed only if he had consumed the intoxicant within the prohibited area. No dount, this fact, can be established even by circumstantial evidence. But the record of the present case fails even to establish it by circumstances.

In my opinin, this decision is a complete answer to all the arguments advanced by Mr. Chhaya on behalf of the State. In my opinion, this decision lays down a correct position of law in this behalf and I am in respectful agreement with it.

17. Mr. Chhaya invited my attention to an unreported decision of this Court in Criminal Appeal No. 6 of 1968, decided by Y.D. Desai, J., on 13-8-1969 (Guj). In my opinion, that decision does not lay down any principle which runs counter to the principle enunciated by Vakil, J., in the aforesaid decision. After referring to that decision, Y.D. Desai, J., has observed:-

'The learned Judge, while laying down the proposition that the prosecution has to prove that the prosecution has to prove that the prohibited liquor was consumed within the jurisdiction has also observed in the last part of his judgment that the fact of liquor having been consumed within the prohibited area can in the facts of a given case be established by circumstantial evidence. In the matter before the learned Judge there were no such circumstances with the result that order of acquittal came to be confirmed. In the present case, what we find is that the accused is a resident of Joravarnagar. He was found near his house having consumed liquor. The situation of Joravarnagar is such that it may be difficult for a man to go hundreds of miles away from there to take liquor and to come back such that he would be found unsteady in gait and stammering in speech. In the circumstances, I have no hesitation to hold that the accused had consumed within the State and not outside the limits of the State.'

In the instant case, each petitioner was found having consumed liquor in Deesa town which is not far away from the areas or other State, where liquor could be consumed without any pass or permit. There are no circumstances in any of these cases to probabilise that each of these petitioners consumed liquor within the limits of the State of Gujarat and did not consume it outside the limits of this state.

18. As said earlier, it was submitted by Mr. Chhaya that in each of these cases, as per the chemical analyser's report, Ethyl alcohol found in blood taken from each of these petitioners was more than 0.05 per cent. W/V. It means that the alcohol had still not assimilated in the system. It was, therefore, urged that the processes of consuming liquor still continued and it could, therefore, be said that each of these petitioners had done part of consumption within the limits of this State. In my opinion, this argument is not well founded. It is not the assimilation of the alcohol that would prove consumption of alcohol. In the aforesaid case decided by the Division Bench of this Court, this point has been considered at length and the following observations have been made at page 411 and 412 (of Guj LR) = (at p. 236 of AIR):-

'Now it is fairely clear that sub-section (1) (b) of S. 66 makes the act of consumption of an intoxicant an offence. The sub-section uses the word 'consumes' which means that the act of drinking or consuming an intoxicant has been made an offence. The legislature has not used the words 'having been found to have used or consumed'. Therefore, the offence under Section 66(1)(b) is complete when a person consumes prohibited intoxicant. The Act does not define the word 'consume' and therefore, we must attribute to the word 'consume' its literary dictionary meaning. According to Webster's New World dictionary, 1956 Edition, the word 'consume' means 'to drink or eat up, devour'. Lord Hawart C. J. While dealing with the word 'consume' in Section 4 of the Licensing Act, 1921, in Caldwell v. Jones, (1923) 2 KB 309 also has observed that the word 'consume' must be read in its natural and ordinary sense, and on such a meaning held in the light of the provisions of Section 4 of the Licensing Act that that section prohibited, except during the permitted hours, and subject to the specific exceptions provided for by the Act, the consumption on licensed premises of any intoxicant liquor, even though that liquor might not have been sold or supplied on those premises, but was brought into the premises by the person consuming it there. When the word 'consume' thus is given its dictionary meaning, it would mean to drink or to otherwise use prohibited liquor. There is a clear distinction between the act of consuming and the fact of a man having been found drunk. In fact the Act itself makes that distinction for under Section 66(1)(b), the act of consuming has been made an offence while under Section 85(1) the act of a man having been found drunk and incapable of taking care of himself in any street, thoroughfare or public place, has been made a distinct offence.

But it was contended that we must presume under Section 114 of the Evidence Act that the accused must hae consumed liquor at the very place where he was found by the police, regard being had to the common course of natural evidence. But there is no such presumption in the Act that a person should be considered to have taken liquor at the very place where he is found intoxicated. With the facility of speedy transport available now-a-days it is always possible for a man to drink or consume liquor at one place and to be found in an intoxicated state at another place. Not only the Prohibition Act does not provide for any such presumption but it does not throw the burden upon the accused to prove that he drank liquor at a place other than the place where he was found intoxicated. Besides, there is nothing like the common course of natural events as contemplated by Section 114 of the Evidence Act for a person found intoxicated at one particular place to have of necessity consumed liquor at the very same place.'

It could not, therefore, be said that each petitioner in these revision petitions had consumed liquor at Deesa town as blood was taken by the Medical Officer from each of them at Deesa and on examination of that blood, Ethyl Alcohol was found in blood which exceeded 0.05 per cent. V/W. The find of it couldonly prove that the person concerned had consumed liquor. Find of it could not prove that he had consumed liquor at the place where he was found. It could not be said from its find that the offender had consumed liquor within the limits of the Gujarat State. As said earlier, there are no such circumstances brought on the record or pointed out by the learned Assistant Government Pleader from which it could be said that the circumstances probabilised that liquor was consumed by these offenders within the limits of Gujarat State. The order of conviction and sentence passed against each of the petitioners in these revision petitions for the said offence cannot, therefore, be subtained in law.

19. So far as the revision petition No. 466 of 1966 is concerned, that petitioner Koli Kalu Ramsi was also convicted of offences punishable under Section 85(1)(1) and 85(1)(3) of the Act and was sentenced to suffer seven days' rigorous imprisonment and to pay a find of Rs. 25 and in default of payment of fine, to undergo seven days' further rigorous imprisonment for each of those offences. That order of conviction and sentence was not challenged in Criminal Appeal No. 50 of 1966 filed by him. In the revision petition filed in this Court also, that order has not been challenged and Mr. Barot has fairly conceded that it was not challengeeable. There is clear and consistent evidence which has been found to be reliable and acceptable to hold the petitioner guilty of these offences.

20. The result is that Criminal Revision Applications Nos. 464 and 465 of 1966 succeed. These applications are allowed and the order of conviction and sentence passed against the respective petitioner of those revision applications is set aside. Each of them is acquitted of the offence punishable under Section 66(1)(b) of the Bombay Prohibition Act, 1949. Their bail bonds are ordered to be cancelled. Rule is made absolute.

21. Revision Application No. 466 of 1966 partly succeeds. The order of conviction and sentence passed against the petitioner Koli Kalu Ramsi under Section 66(1)(b) of the Bombay Prohibition Act, 1949 is set aside. He is acquitted of that offence. The order of conviction and sentence passed against him for offences under Sections 85(1)(1) and 85(1)(3) of the Bombay Prohibition Act, 1949, is upheld. He is ordered to surrender to bail. Rule is modified.

22. Order accordingly.


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