1. The vakil for the petitioner has failed to satisfy me that the conviction, dated 1st December 1881, is not founded upon a correct view of the law; and, under any circumstances, I object to re-opening a case after the lapse of six months from the date of the conviction.
2. I am not prepared to say that the petitioner was not in possession of the liquor. It had, it is admitted, been passed out to him from the Customs, and he was about to despatch it to the consignee at Agra. Neither am satisfied that the holder of a license, not granted by the Excise authorities here, is a licensed vendor within the meaning of Beng. Act VII of 1878. In this view of the law, the petitioner, whether in possession on his own account, or for the consignee, was a person 'other than a licensed vendor,' and being admittedly without a pass from the Collector or other officer duly empowered in that behalf, I see no illegality in his conviction under Section 61, Beng. Act VII of 1878.
3. I am sorry to differ, but I certainly think the conviction is bad on the ground that no offence has been committed. The facts are, that certain liquor consigned to Martinez and Co., licensed vendors at Agra, was imported in the Steamer Navarino. The petitioner, at the request of the consignee, cleared this liquor by paying the duty and landing charges. The Abkari authorities seized it in the Strand Road while it was being conveyed to the Howrah station for despatch to the consignee. The petitioner was convicted of having the liquor in his possession in contravention of Sections 17 and 61 of the Excise Act (Beng. Act VII of 1878). He was not himself a licensed vendor, nor had he a pass from the Collector. The question then is, was the liquor in his possession within the meaning of those sections
4. Putting a reasonable construction on the word 'possession. I hold that it was not. There is certainly a distinction between possession and a bare temporary custody or charge on behalf of another person. The liquor belonged to a licensed vendor, and was in course of transit to him. It would be a very strained construction of the sections to say that it was in the possession of the petitioner, who had merely done what was necessary to clear and forward the goods to their proper destination. If it was in his possession, it was equally in the possession of the cartmen who were carrying it. I think it makes no difference, so far as the petitioner is concerned, that the consignee was a licensed vendor not in Bengal, but in the Upper Provinces. If this conviction is right, then A, who had imported liquor for his own consumption and use, would be guilty of no offence once the liquor, had come into his actual possession; but B, who acting for A had cleared the liquor and was conveying it from the Custom-house to A's house, would be guilty of an offence under Section 61, because B was in possession of it, and the possession was not for his private use and consumption. The Courts must certainly, before convicting, enquire into the purpose of the possession, and I think they must also enquire into the nature.
5. It may be noted that, in this case, though the usual notice was given to the Government Solicitor, no one has appeared for the Government to support the conviction; and though the Presidency Magistrate has, in two subsequent cases, come to an exactly contrary conclusion on precisely the same facts, the Excise authorities have accepted the decisions. Apart from this, however, I consider the conviction bad, and would set it aside.
6. As to the delay in making the application, this has been sufficiently accounted for. The delay might have been some ground for refusing the rule. It is no ground for rejecting the application when the rule has been granted.
7. I agree on the whole with Macpherson, J., that this conviction was wrong.
8. We must take the facts, I think, to be these, and these only, that certain liquors arrived by the s.s. Navarino for Martinez & Co., licensed dealers of Agra, in the North-Western Provinces; that the accused was requested by them to pay, on their behalf, the duty and the landing' charges, and to forward the liquor to Agra. The liquor was seized in Calcutta as being in the possession of the accused without a pass, within the meaning of Section 61, Beng. Act VII of 1878.
9. I do not think we can support this conviction unless we are prepared to lay down broadly that anybody who has anything to do with the transit of liquor is within the section. If the accused was within the section, I do not see why the ship-owners, if they landed the goods, were not equally so. I do not see how the Railway Company, if they had carried the goods, could have escaped the necessity of obtaining a pass, and perhaps a pass for each District of Bengal through which they carried them.
10. As to the delay that has occurred--taking into consideration the fact, that the Magistrate himself has since disapproved of the conviction, the efforts which the accused has made in other quarters to reverse or nullify it, and that no objection is raised on the part of the Crown,--I think we may properly set aside the conviction and direct the return of the fine and the release of the goods declared to be forfeited.