Macpherson and Banerjee, JJ.
1. The petitioner, who has been convicted by the Deputy Magistrate of Goalundo under Section 53 of the Excise Act (Bengal Act VII of 1878), for manufacturing a liquor called sanjivani sura without a license, and has been sentenced to pay a fine of Rs. 15, asks us to set aside the conviction and sentence on the ground that the act of the petitioner does not constitute any offence under Section 53 of the Act.
2. The facts of the case are thus set out by the learned Deputy Magistrate in the brief statement of reasons under Section 263, Criminal Procedure Code:
The accused, was found manufacturing a kind of liquor which he calls sanjivam sura, or life-reviving liquor. He has no license from the Collector to manufacture any liquor. The liquor was made by fermentation of gvr and different spices. The strength of the liquor is 36 degrees below London proof. Accused's act falls under the purview of Section 53 of Bengal Act VII of 1878. There is no doubt that he was making it for medicinal purposes, but the law makes no exception in his favour. The accused admits having made the liquor. He is a Kobiraj by profession.
3. These being the facts of the case, the question is, whether any offence under Section 53 of the Excise Act is established against the accused.
4. Section 53 of the Excise Act provides that 'whoever manufactures or sells any excisable article without a license shall be liable to a fine not exceeding Rs. 500 for every such manufacture or sale.' Now excisable article, as defined in Section 4 of the Act, 'includes spirituous and fermented liquors and intoxicating drugs as defined by the Act;' and 'spirituous liquor,' 'fermented liquor' and 'intoxicating drug' are by the same section defined thus:
Spirituous liquor includes any spirituous liquor imported into India or manufactured in India by any process of distillation.
Fermented liquor includes malt liquor of all kinds, tari fresh or fermented, pachwai diluted, or undiluted, or any other infcoxicating liquor which the local Government may from time to time declare to be included in this definition.
Intoxicating drugs include ganja, bhang, charus, every preparation and admixture of any of the above, or any other intoxicating drug which the local Government may from time to time declare to be included in this definition.
5. So that the only description of excisable article under which the liquor in question can possibly come is 'spirituous liquor.'
6. If it comes under that description the conviction is right; if not, it must be held to be wrong.
7. The term 'spirituous liquor' is not however defined in the Act. What is given as the definition of the term is, strictly speaking, no definition at all. It merely says 'spirituous liquor includes any spirituous liquor imported into India or manufactured in India by any process of distillation,' So that it assumes that the term has a recognized meaning, though it does not say what that meaning is Now whatever the exact meaning of the term may be, we do not think that it is intended to include a medicinal preparation merely because it is a liquid substance containing alcohol in its composition. We observe that the liquor in the present case was manufactured from gvr or treacle mixed with other ingredients, as to the nature of which we know nothing except this, that the preparation was made for medicinal purposes. The case would have been different if the accused had been found manufacturing alcohol or spirits separately for the purpose of being used in the preparation of a medicine. That, however, is not the case here. What he is found to have manufactured by the processes of fermentation and distillation is not alcohol or spirit separately, but the compound substance, the medicine, at once. That act does not in our opinion come within the purview of Section 53.
8. The view we take receives support from the consideration that if it was an offence to manufacture this particular liquor, it would equally be an offence under Section 53 to sell it; but we do not think that on the facts found in this case a conviction for selling it without license could be maintained.
9. The conviction and sentence in this case must therefore be set aside, and the fine if realised must be refunded.