Mookerjee and Beachcroft, JJ.
1. The appellant, Biswas, has been convicted by the Fourth Presidency Magistrate of Calcutta, of offences under Sections 46 and 48 of the Bengal Excise Act, 1909, and sentenced to pay a fine of Rs. 210 under fee latter section; no separate sentence has been passed under the former section. The circumstances antecedent to the prosecution, as established by the evidence, may be briefly narrated.
2. On the 12th October 1912, the Deputy Inspector of Excise at Calcutta, upon information received, searched the premises of the accused and found 32 boxes each containing 6 bottles and an isolated bottle of eau-de-Cologne and also 23 long shaped eau-de-Cologne phials all containing a similar liquid. On examination the contents were found to be perfumed denatured spirit The Deputy Inspector also found two boxes of labels similar to those affixed to the phials. The accused was thereupon prosecuted and charged with possessing, without license, 193 bottles and 23 long shaped phials containing perfumed spirit made with denatured spirit, which had been rendered fit for human consumption; he was also charged with having manufactured and sold such spirit from time to time, with attempting to render denatured spirit fit for human consumption, with having in his possession such spirit, and with bottling such spirit for the purpose of sale. The accused repudiated all these charges, and asserted that the liquid contained in the bottles and phials was intended to be used as a furniture-wash, not as liquor to be consumed. The prosecution has resulted in the conviction of the accused as already stated.
3. On the present appeal the propriety of the conviction has been assailed on the ground that the elements necessary to constitute an offence under Sections 46 and 48 have not been established on the evidence. We Shall examine separately the arguments in relation to the two sections named, and as the sentence has been passed only on the basis of the conviction under Section 48, we shall first consider the scope and effect of that section in relation to the facts elicited at the trial.
4. Section 48, in so far as it is sought to be made applicable to the case before us, provides that if any person attempts to render fit for human consumption any spirit which has been denatured, he shall be liable to be punished in the prescribed manner. To support a conviction under Section 48 two elements must consequently be established, namely, first, that the spirit is denatured spirit, and, secondly, that the accused has attempted to render such spirit fit for human consumption. Now Clause (6) of Section 2 defines the term 'denatured' to mean 'effectually and permanently rendered unfit for human consumption.' A very serious difficulty is raised by this definition. The words 'unfit for human consumption' may perhaps be paraphrased as 'liable to be injurious to health', but what is meant by the words effectually and permanently'? The Legislature cannot have intended to mean by 'denatured spirit' such as would remain unfit for human consumption in spite of dilation with water, as even the most poisonous substances can be rendered not only harm less, but in some cases beneficial by sufficient dilution. Then, is the definition intended to meet the case of spirit so treated that no chemical process, which does not substantially increase the bulk of the liquor, can render it fit for human consumption, or, did the Legislature contemplate some process which, in the absence of some chemical treatment, would render it effectually and permanently unfit for consumption; in other words, did the Legislature contemplate some denaturing process which would be proof against any process intended to alter the nature of the spirit, or only a process which would be permanently effective in the absence of some chemical treatment or process of filtration? On the one hand, it is difficult to imagine a denaturing process which would preserve its effect in the face of every possible chemical treatment of the liquor; on the other hand, it is singular that while the Act provides for the punishment of an attempt to render fit for consumption denatured spirit, it does not provide any punishment for a successful attempt, or, in other words, the completed act; and the absence of such a provision suggests that the definition of 'denatured' contemplates such a process as will defy any chemical treatment. If that be the meaning, it is clear that in the present case the spirit was not denatured, for the witness Jenks speaks of the liquid as having been 'so manipulated that it no longer possesses the characteristics of denatured spirit' and the Magistrate finds that the accused not only attempted to render the spirit fit for human consumption but actually succeeded in his attempt. If the other meaning be the correct one, it is sufficient to state that there is no evidence on the side of the prosecution or admission by the accused that the spirit was in fact ever denatured. Consequently the conviction under Section 48 of the Bengal Excise Act cannot be supported.
5. As regards the conviction under Section 46, reliance has been placed only upon Clauses (a) and (d). These clauses, in so far as they have any possible application to the facts of the present case, render a person liable to the prescribed punishment, if, in contravention of the Act or of any rule, notification or order made issued or given under the Act, he manufactures, possesses or sells any excisable article, or bottles any liquor for purposes of sale. Before we examine the scope and effect of these provisions, it is necessary to premise that under the rules made by the Excise authorities, every person is entitled to keep in his possession without a license or a pass, one imperial gallon of what is technically called denatured spirit. Let it be assumed for the purpose of argument--and for that purpose alone--that in the liquid contained in the bottles and phials found on the premises of the accused, there was a quantity of such spirit as would be excisable article within the meaning of that term as defined in Clause (7) of Section 2 of the Bengal Excise Act. It is plain that the accused has not been proved to 'possess' excisable article in contravention of the Act or of a rule made under the Act; for it has not been shown that the total quantity of 'denatured spirit' in his possession exceeded one imperial gallon. It is equally plain that the accused has not been proved to have sold an excisable article, because no evidence has been adduced to prove any sale by the accused. The questions consequently remain, whether the accused has manufactured an excisable article or has bottled any liquor for sale. Now, the term 'manufacture 'is defined in Clause (15) of Section 2 to include every process, whether natural or artificial, by which any excisable article is produced or prepared, as also every process for the rectification, flavouring, blending or colouring of liquor. The essence of 'manufacture,' consequently, is that it is a process, which is defined as follows in the Oxford Dictionary (Vol. VII, p. 1408): 'A continuous and regular action or succession of actions taking place or carried on in a definite manner and leading to the accomplishment of some result; a continuous operation or series of operations; a particular method of operation in any manufacture.' We are not prepared to hold that the mere dilution of denatured spirit with water is a process for the manufacture of an excisable article, assuming that the diluted liquid is an excisable article within the meaning of the Act. Besides, there is no evidence to show that it was the accused who 'manufactured' the liquid, even if it is assumed that dilution is 'manufacture' for the purposes of the Act. Nor is it proved that the accused transferred liquor from a cask or other vessel to a bottle or other receptacle for the purpose of sale within the meaning of Clause (3) of Section 2. The conviction under Section 46 cannot consequently be sustained. In this view, it is not necessary to consider whether the spirit diluted with water is an excisable article or intoxicating liquor within the meaning of Clauses (7) and (14) of Section 2, or whether the case of Mati Lal Chandra v. Emperor (1912) I.L.R. 39 Calc. 1053 upon which much reliance was placed on behalf of the appellant, gives effect to the statutory provisions on the subject. It is, however, difficult to believe that the framers of the Statute could really have intended that spirit which had been effectually and permanently rendered unfit for human consumption, should, by reason of mere dilution with water, be deemed to have become an intoxicating liquor or drug within the meaning of the Act. It is a matter for legitimate comment that the difficulty in this case is attributable principally to the surprising looseness of expression which characterises many of the provisions of the Act.
6. It was finally suggested in the course of argument, on behalf of the Crown, that the order of the Magistrate is not liable to be challenged by way of appeal under Section 410 of the Code of Criminal Procedure, and reference was made to Sections 75 and 81 of the Bengal Excise Act to show that the Code has a restricted application to proceedings taken under the Act. This argument is obviously fallacious, inasmuch as Sections 75 and 81 apply only to proceedings before a Collector. On the other hand, Section 84, which excludes the application of Section 191 of the Criminal Procedure Code in cases in which a Magistrate has taken cognizance of an offence under the Act, furnishes ample indication that the Criminal Procedure Code is applicable to trials before a Magistrate, subject to specified restrictions.
7. We may finally add that the trial in the Court below has been obviously vitiated by misjoinder of charges in contravention of the provisions of Section 233 of the Criminal Procedure Code. The view cannot possibly be maintained that the acts imputed to the accused, namely, manufacturing the excisable article seized and brought into Court, bottling it, possessing it, selling from time to time various other articles not before the Court, and attempting to render denatured spirit fit for human consumption, constitute the same transaction. The fact that the trial has taken place as in a summons case does not exclude the application of Section 233 of the Criminal Procedure Code: King-Emperor v. San Dun (1906) 3 L.B.R. 52. Consequently, on the ground of misjoinder alone, the conviction and sentence are liable to be set aside; but we have preferred to rest our decision on the merits of the case, inasmuch as we would have felt inclined to direct a retrial if the appeal had succeeded merely on the ground of misjoinder.
8. The result is that this appeal is allowed and the conviction and sentence set aside. The consequential order for confiscation made under Section 63(1) and 64(1) will necessarily stand cancelled. The fine, if paid, will be refunded, and the articles seized will be returned to the appellant.