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In Re: Damodara Naidu and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Judge
Reported inAIR1916Mad32; 31Ind.Cas.656
AppellantIn Re: Damodara Naidu and anr.
Excerpt:
madras abkari act (i of 1886), section 56(b) - license for sale of arrack 32 degrees under proof, sale in breach thereof--adulteration--allowance of 2 per cent, for wastage under rule 229, standing orders of the board of revenue how far defence--standing orders of board of revenue, rule 239, scope of--abkari prosecution-- technicality of offence, whether can be considered by court. - .....can be construed to mean that licensees can adulterate arrack so long as they do not exceed 2 per cent, over the strength mentioned in the permit. it is only a departmental rule for the guidance of its subordinates and fixes a 2 per cent, margin as an allowance for evaporation in cases where there is reason to believe that the diminution in strength is due to natural causes.4. the rule was not made under section 69 of the madras abkari act and is, therefore, not one having the force of law, or a rule to be read as part of the act.5. under the act, an offence is committed the moment a person sells arrack below the strength specified in the permit--no matter what the cause of the variation may be. it is true that the offence may be only technical, but this is a matter for the officers.....
Judgment:
ORDER

Kumaraswami Sastri, J.

1. The terms of the license are specific and the privilege extends only to the sale of arrack 32 degrees under proof. Section 56, Clause (6), of the Madras Abkari Act, 1886, renders any person who does any act in breach of the conditions of his license punishable with imprisonment which may extend to three months or with file extending to Rs. 200 or with both.

2. The evidence in the case shows clearly that spirits over 32 degrees was sold and the only question is whether Rule 229 of the Standing Orders of the Board of Revenue, which directs Abkari Officers to allow wastage in bottling up to 2 per cent., can be pleaded as a defence to a prosecution under Section 56, Clause (b).

3. I do not think the rule can be construed to mean that licensees can adulterate arrack so long as they do not exceed 2 per cent, over the strength mentioned in the permit. It is only a departmental rule for the guidance of its subordinates and fixes a 2 per cent, margin as an allowance for evaporation in cases where there is reason to believe that the diminution in strength is due to natural causes.

4. The rule was not made under Section 69 of the Madras Abkari Act and is, therefore, not one having the force of law, or a rule to be read as part of the Act.

5. Under the Act, an offence is committed the moment a person sells arrack below the strength specified in the permit--no matter what the cause of the variation may be. It is true that the offence may be only technical, but this is a matter for the officers instituting the prosecution.

6. In the present case, both the Joint Magistrate and the Sub-Magistrate have believed the evidence of the Sub-Inspector and I do not think I ought in revision to go behind, their findings of fact. The evidence of the Sub-Inspector shows that even the 2 per cent, margin was exceeded when he tested the arrack. I see no ground for interfering with the conviction or sentence and dismiss the petition.


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