1. This is an appeal against an order of acquittal by the learned Judicial Magistrate, First Class, Kalol, whereby he acquitted the accused Dhulaji Bavaji of the charges under Section 66(1)(b) and Section 85(1)(i) and Section 55(1)(iii) of the Bombay Prohibition Act, 1949.
2. On the 23rd of October 1959, P. S. T. pesal with a police Patty had gone to make prohibition raid in the village Indroda in Kalol Taluka. While they were returning they came to village Shertha. In consequence of certain information received there, the police party went to a place called Thakarda vas where they found the accused in a state of intoxication and lying on a public road. The Police Officer found that the accused was not able to take care of himself and not able to walk steadily and his breath was smelling of liquor. He was also not able to talk in a coherent manner. A Panchanama of the physical condition of the accused was thereafter recorded and the accused was then sent to the Medical Officer, Kalol. The Medical Officer on examining the accused found that the accused was under the influence of alcohol. He also issued a certificate stating therein the physical condition of the accused and his opinion that the accused was under the influence of alcohol. The Medical Officer took samples of blood and urine of the accused. The sample of urine was not sent to the Chemical Analyser but the blood sample was sent and the opinion of the Chemical Analyser was that the sample of blood contained 0.130 per cent. W/V of ethyl alcohol. On these facts the accused was charge-sheeted for the offences aforesaid. The defence of the accused was that the police party had not found him from the road, that at the time when the police party arrived in the Thakarda vas of Shertha, he was steeping in his house from where he was taken out. He also denied that he had consumed liquor or that he was drunk. He asserted that the Medical Officer had not examined him but had only seen his eyes; that the certificate given by him was false, and, lastly, that his blood was not taken and the report of the Chemical Analyser did not relate to his blood.
(After discussing the evidence in paras 3 and 4 the judgment proceeds):
5. The learned trial Magistrate gave a finding that the evidence of the doctor as also his certificate were acceptable evidence that the accused had consumed liquor but he was of the view that the prosecution had failed to prove:
(1) that the accused was found in an intoxicated state on the public road and, therefore, he was not liable to be, convicted under Section 85(1)(i) or Section 85(1)(iii), and
(2) that the prosecution had failed to establish that the accused had consumed liquor at a place within the jurisdiction of his Court.
He held, therefore, that he had no jurisdiction to try the accused and, therefore, could not convict him in respect of the offence under Section 66(1)(b) of the Bombay Prohibition Act.
6. As regards the charge under Section 85 of the Act, the learned Assistant Government Pleader submitted that the learned trial Magistrate had failed to appreciate the evidence of the prosecution witnesses; that such appreciation that he had attempted to make was not based upon any legal principle, and that, therefore, he was in error when he discarded the evidence of the police officers especially when he accepted the evidence of the doctor with regard to the physical condition of the accused. On the other hand Mr. Trivedi for the respondent contended that there were discrepancies in the evidence of the two police witnesses and that, therefore, the learned Magistrate was entitled to reject their evidence. He also contended that we would not be justified in interfering with the appreciation made by the learned Magistrate of the oral testimony adduced by the prosecution before him. On going through the entire evidence we find that there is considerable force in the submissions made by the learned Assistant Government Pleader. The only reason which the learned Magistrate has given for rejecting the evidence of the police witnesses is that there are certain discrepancies in the evidence of the two witnesses.
(After discussing the evidence the judgment proceeds):
In our view, therefore, the rejection of the evidence of the police witnesses was unjustifiable and not based upon any principle of appreciation of evidence. We are, therefore, entitled to interfere with the finding of the learned Magistrate, though it is one of fact. In our view, there was sufficient acceptable evidence which established beyond any reasonable doubt that the accused had consumed liquor and when found by the police on the public road, he was not able to take care of himself. The accused, therefore, was liable to be convicted in respect of the charge against him under Section 85(1)(i) and Section 85(1)(iii) of the Act.
6A. It was then contended by the learned Assistant Government Pleader that the learned Magistrate was in error when he held that the prosecution had failed !o establish that the offence under Section 66(1)(b) occurred within his territorial jurisdiction. The learned Assistant Government Pleader contended that since the accused was found in a public place in Thakarda vas in such a position that he was not able to take care of himself. We must assume that he must have consumed prohibited liquor at that very place, that is to say, within the jurisdiction of the learned trial Magistrate. He also contended that the learned trial Magistrate could have tried the accused and convicted him under Section 66(1)(b) by reason of the provisions of Ss. 179, 180 and 182 of the Code of Criminal Procedure.
(7) Now, Section 66(1)(b) of the Bombay Prohibition Act provides that:
'Whoever in contravention of the provisions ofthis Act or of any rule, etc......consumes, usesetc......any intoxicant....shall, on convictionbe punished etc. .....'
Sub-section (2) of Section 66 contains a rule as to proof and also a presumption which is contained in mandatory terms. That sub-section provides that:
'Where in 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 medicinal or a toilet preparation ..... containingalcohol, the consumption of which is not in contravention of the Act or any rules, regulations or ciders made thereunder, shall be upon the accused person.....'
The sub-section enjoins upon the Court in the absence of such proof to presume the contrary. Under Sub-section (2) of Section 66 therefore the burden that the liquor was not prohibited intoxicant has been thrown upon the accused. It was, however, not the case of the accused that what was drunk or consumed by him was not prohibited liquor and that what he had consumed was a medicinal or a toilet preparation containing alcohol. His case in fact was that he was in his house when the police raided the locality and that he had not drunk or consumed any liquor at all. Now it is fairly clear that. Sub-section (1)(b) of Section 66 makes the act of consumption of an intoxicant an offence. The subsection 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 Havert C. J. while dealing with the word 'consume' in S. 4 of the Licensing Act 1921, in Caldwell v. Jones, 1923-2 KB 309 also had 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 fact 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.
8. But it was contended that we must presume under Section 114 of the Evidence Act that the accused must have consumed liquor at the very place where he was found by the police, regard being had to the common course of natural events. But there is no such presumption in the Act that a person should be considered to have taken liquor at thevery place where he is found intoxicated. With the facility of speedy transport available now-a-days it is always possible for a person 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 drunk 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.
9. Section 177 of the Code of Criminal Procedure provides that every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed. Therefore, the competency of a forum to take cognizance of or to inquire into or try an offence as defined by Section 4 of the Code is determined by the place where the offence is committed. Offences are in their nature local and the jurisdiction of the criminal Courts is also local. A Magistrate within whose jurisdiction an offence is committed is authorised under the Code to take cognizance of and to try an accused or commit him to the Court of Sessions. A Magistrate, therefore, has no power by virtue of Section 177 of the Code to try an accused for an offence committed wholly outside the limits of his jurisdiction. It follows, therefore, that before a person can be convicted it is for the prosecution to establish that the Court which takes cognizance of and tries him has territorial jurisdiction..... But it was contended by thelearned Assistant Government Pleader that under Section 179 of the Code, the accused could have been tried and convicted by the learned Magistrate. Section 179 provides that
'When a person is accused of the commission of any offence by reason of anything which has been done, and of any consequence which has ensued, such offence may be inquired into or tried by a Court within the local limits of whose jurisdiction any such thing has been done, or any such consequence ensued.'
It was argued that the consequence of consuming liquor was the intoxicated state of the accused to such an extent that he was not able to take care of himself and therefore the accused having been found in such a state in a public place i.e. at the scene of the offence would give jurisdiction to the learned trial Magistrate. Illustration (a) to Section 179, however, shows that this contention is untenable. That illustration states:
'A is wounded within the local limits of the jurisdiction of Court X, and dies within the local limits of the jurisdiction of Court Z. The offence of culpable homicide of A may be inquired into or tried by X or Z.'.
It is clear from this illustration that this offence could have been tried either in X Court or Z Court because the ingredients of the offence of culpable homicide are the causing of injuries and the resultant death. It is clear that if either of the ingredients has occurred at the place X or Z, obviously both the Courts would have jurisdiction to try the offence of culpable homicide. Thus, where the act in question and its consequence are the ingredients of an offence, both of them confer jurisdiction. Therefore, if A is injured within one jurisdiction and dies in the local limits of another jurisdiction, the ingredients of culpable homicide being both causing injuries and death, a Magistrate of eitherof the two local areas would have jurisdiction. Section 179 applies to those offences which by their very definition consist of an act and its consequence. The consequence must form part of the offence. The act and consequence together must constitute the offence. If, therefore, the offence is complete in itself by reason of the act having been done and the consequence is a mere result of it, not essential for the completion of the offence, then Section 179 cannot apply. The learned Assistant Government Pleader then sought to rely upon Section 180 of the Code: that section provides that:
'When an act is an offence by reason of its relation to any other act which is also an offence or which would be an offence if the doer were capable of committing an offence, a charge of the first mentioned offence may be inquired into or tried by a Court within the local limits of whose jurisdiction either act was done.'
Illustrations (a), (b) and (c) to the section furnish examples of an act which is an offence by reason of its relation to any other act which is also an offence. Abetment for instance, is an act which is by itself an offence, by reason of its relation to an act which constitutes a particular offence. Similarly, receiving or retaining stolen property is an offence by reason of its relation to the act of theft. Concealing a person with knowledge that he is a kidnapped person is an offence by reason of its relation to the act of kidnapping. Unless the offence of kidnapping has taken place a person concealing another person without knowledge that that person is kidnapped would not commit the offence. Therefore, it is the relation of one act with the other that brings Section 180 into operation and gives jurisdiction to the Courts in both the local areas where either of them has occurred. In our view, Section 180 on the facts of this case cannot have any application.
10. Our attention was also drawn by the learned Assistant Government pleader to a decision in In re L. N. Mukerjee, AIR 1961 Mad 126. A Division Bench of that High Court held in that case that criminal conspiracy was, in a strict sense, an offence by reason of its relation to any other act which is also an offence. Since the first mentioned offence in Section 180 can refer to the charge of criminal conspiracy alone, the Court which has jurisdiction to try the offence committed in pursuance of it, can also try the offender or offenders upon the charge of conspiracy. Relying upon these observations, the learned Assistant Government Pleader argued that since the Court of Session in Madras, within whose jurisdiction the offence in pursuance of the conspiracy was committed could try both the offence as also the offence of conspiracy which had taken place in Calcutta, the learned trial Magistrate in this case also could have tried the offence under Section 66(1)(b) of the Prohibition Act as he had the jurisdiction to try the offence under Section 85(1) of the Act. In our view, the learned Assistant Government Pleader does not read the decision of the Madras High Court in the light in which it should be read. At page 128 of the report the learned Judges have approvingly cited the decision in Banwarilal v. Union of India, AIR 1959 Kerala 311, where it was observed that the offence of criminal conspiracy was very similar to the offence of abetment, for the purpose of Section 180 of the Code of Criminal Procedure and illustration (a) to that section showed that the Court which has jurisdiction to try the further offence committed in pursuance of the conspiracy could also try the charge of criminal conspiracy itself. Thus, it is clear that Section 180 of the Code was made applicable to the facts in the Madras case on the footing that original conspiracy was very similar to the offence of abetment to which illustration (a) of Section 180 would apply. The decision in fact in that case would seem to support the reasons given by us above.
11. Next, it was argued that Section 182 of the Code in any event would apply to such a case as the one before us. That section deals with the place of inquiry of trial where scene of the offence is uncertain. Reliance was placed on the first part of Section 182 which provides that:
'When it is uncertain in which of the several local areas an offence was committed, or where an offence is committed partly in one local area and partly in another, or where an offence is a continuing one, and continues to be committed in more local areas than one, or where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas'.
The learned Assistant Government Pleader contended that since the prosecution was uncertain as to the place where the accused consumed liquor, the learned trial Magistrate, within whose jurisdiction he was found in an intoxicated condition, could have jurisdiction under Section 182. We confess we are not able to appreciate this contention. Section 182 contemplates four contingencies;
(1) Where it is uncertain in which of the local area an offence is committed;
(2) Where an offence is committed partly in one local area and partly in another;
(3) Where an offence is a continuing one and continues to be committed in more localareas;
(4) Where it consists of several acts done in different local areas.
It is the first contingency that was relied upon by the learned Assistant Government Pleader. It is clear that contingencies (2), (3) and (4) would not apply to the facts of this case for it is not the case of the prosecution that the offence was committed partly in one local area and partly in another nor is it the case of the prosecution that the offence was a continuing one or continued to be committed in more local areas than one or that it consisted of several acts done in different areas. As we have pointed out, an offence under Section 66(1)(b) would be complete as soon as an accused consumes liquor. The offence has no relation to the quantity consumed and, therefore, it cannot be said that the offence was committed partly in one local area and partly in another local area or the offence was a continuing one or continued to be committed in more local areas than one or that it consited of several acts done in different areas. There can in fact, be no uncertainty as contemplated by Section 182 as to the place where the offence was committed. A Magistrate would have jurisdiction to try such an offence if the offence has been committed in a place within his jurisdiction. In our view, therefore, Section 182 also cannot have any application.
12. The type of uncertainty contemplated under Section 182 is well illustrated in the decision. by the Supreme Court in State of Madhya Pradesh v. K. P. Ghiara, AIR 1957 SC 196. The accused there was employed as an agent in the company, whose head office was situated at Nagpur where its books were maintained and the staff located.On January 12, 1950, he was entrusted at Nagpur with a car belonging to the company for sale. The sale took place in Bombay and the proceeds were paid over to him at Bombay between the 13th and the 14th of January 1950. It was clear from the evidence that the accused reached Nagpur on the 17th of January 1950, but the sale proceeds were not credited in the company's books nor the money paid over to the company then or thereafter. A chargesheet filed against him under Section 408, Penal Code, at Nagpur did not either specifically or by necessary implication, refer to the embezzlement in Bombay, nor did it indicate that it took place in Nagpur. There was no evidence to show that prior to his leaving for Nagpur, the accused had entertained or even been animated with an intention to misappropriate the sale proceeds and there was nothing to show that he had utilised the funds during the period of his stay at Bombay for four days for his own use. It was held that the venue of inquiry or trial of a case like the present must primarily be determined by the averments contained in the complaint or chargesheet and unless the facts there are positively disproved, ordinarily the Court where the charge-sheet or complaint was filed had to proceed with it, except where action had to be taken under Section 202 of the Code of Criminal Procedure. It was further held that in the circumstances, it was uncertain whether the offence of embezzlement was committed at Bombay or Nagpur and therefore Section 182 applied and the Court at Nagpur had jurisdiction to inquire into the offence.
13. Now, it was not the case of the prosecution that the accused committed offence of consuming liquor in either one local area or another local area where it was an offence to consume liquor. It was, therefore, not the case of the prosecution that it was not certain in which of the two local areas the accused committed the offence under Section 66(1)(b). In order to attract the provisions of Section 182 it would be necessary for the prosecution to aver that the offence was committed in one or the other local area of which it was uncertain. The prosecution in fact was not in a position to say at all as to where the offence actually occurred, whether in one local area or another local area. For the reasons aforesaid none of the three sections, namely, Sections 179, 180 and 182 of the Code of Criminal Procedure can possibly apply.
14. 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 of 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; Seneviratne v. R. 1936-3 All ER 36. 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 Ajmer, 1956 SCR 199: ((S) 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 proveits 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 (SCR): (at p. 406 of AIR), it is observed that the word 'especially' means facts that are preeminently 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, 1956 SCR 199: ((S) AIR 1956 SC 404), the knowledge as to where the offence occurred would 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. Reliance was placed on the decision in Krishna Kumar v. Union of India, AIR 1959 SC 1390. That was a case under Section 5(1)(c) of the Prevention of Corruption Act, 1947. It was there observed that it was not necessary or possible in every case to prove in what precise manner the accused had dealt with or appropriated the goods of his master. In such a case the question would be one of intention and not a matter of direct proof but giving a false account of what he had done with the goods received by him might be treated a strong circumstance against the accused. In the case of a servant charged with misappropriating the goods of his master the elements of criminal offence of misappropriation will be established if the prosecution proves that the servant received the goods, that he was under a duty to account to his master and had not done so. If the failure to account was due to an accidental loss then the facts being within the servant's knowledge, it is for him to explain the loss for it is not the law of this country that the prosecution has to eliminate all possible defences or circumstances which may exonerate him. If the facts are within the knowledge of the accused then he has to prove them. Of course, the prosecution has to establish a prima facie case in the first instance. It is not enough to establish facts which give rise to a suspicion and then by reason of Section 106 of the Evidence Act to throw the onus on him to prove his innocence. We do not, however, think that these observations can possibly assist the learned Assistant Government Pleader. The decision does not lay down anything different from what was laid down in 1956 SCR 199: ((S) AIR 1956 SC 404) and the decision of the Privy Council in 1936-3 All ER 36. The only thing that washeld in AIR 1959 SC 1390, was that if the prosecution were to establish all the necessary ingredients of the offence under Section 5(1)(c) of the Prevention of Corruption Act and if the accused wanted to establish that his failure to account for the goods entrusted to him was due to a circumstance which would exonerate him, if such a circumstance were to be in the special knowledge of the accused, Section 106 of the Evidence Act would apply and it would be then upon him to establish that circumstance. The contention as to Section 106 of the Evidence Act, there must fail.
15. Lastly it was argued that Section 531 of the Code of Criminal Procedure would apply in such a case. It is, however, clear that Section 531 would have no application and cannot avail the learned Assistant Government Pleader. For that section provided that:
'No finding, sentence or order of any criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or asked, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice.'
There is no finding, sentence or order in this case which is to be set aside on the ground that the proceeding was tried in a wrong district, sub-division or local area. In fact, the learned trial Magistrate has come to the conclusion that by reason of the failure of the prosecution to establish that the offence in question took place within his jurisdiction, he was not in a position to pass an order of conviction against the accused. It is clear that Section 531 cannot have any application.
16. For the reasons aforesaid we are not in a position to accept any of the contentions urged by the learned Assistant Government Pleader. In our view, the prosecution failed to establish that the offence under Section 66(1)(b) of the Bombay Prohibition Act took place within the jurisdiction of the learned trial Magistrate. The trial Magistrate was, therefore, correct in his finding that the prosecution having so failed he was not competent to try the case against the accused under Section 66(1)(b) of the Act much less to convict him. The State appeal, so far as that part of the case is concerned must be dismissed.
17. So far as the charge under Section 85(1)(1) and Section 85(1)(3) is concerned, we are satisfied that the accused was guilty of those offences and the prosecution had proved its case against the accused on those charges beyond any reasonable doubt. We, therefore, set aside the order of acquittal passed by the learned trial Magistrate in respect of those charges and convict the accused both under Section 85(1)(1) and Section 85(1)(3) of the Act. Since we propose to award the sentences to the accused in respect of the offence under Section 85(1)(1) on the ground that he was found drunk in a thoroughfare it is not necessary to award a separate sentence in respect of the offence under Section 85(1)(3). We sentence the accused to rigorous imprisonment for seven days and a fine of Rs. 25/-, in default, seven days' further rigorous imprisonment. Warrant to issue.