1. This was a Rule calling on the Deputy Commissioner of Singhbhum to show cause why the conviction and sentence passed on the petitioners should not be set aside or such other order passed as to this Court may seem fit on the ground that there was misjoinder of charges, and on the further ground that the evidence of the accomplice does not seem to be corroborated in any material particular.
2. We are of opinion that the Rule fails on both the grounds. There is clearly no misjoinder. The offences of which the petitioners are charged are such as fall either within Section 46 in the case of No. 1 read with Section 56, or independently in the case of No. 1 within Section 54. He could not be convicted under both the sections and the fine inflicted was only under one section.
3. As regards the question of whether a licensed vendor, who is punishable by implication under Section 56, can be tried together with his agent who commits the offence, we think there is no doubt that he can; for the case is one of abetment by implication, and Section 239 clearly allows an abettor to be tried in the same trial as the principal. But in this case there is evidence to show that the accused No. 1 is not merely an abettor by implication but the actual abettor, inasmuch as the evidence is that the receptacles of each room and the boxes in which the offending articles were locked up were so locked up, by the petitioner No. 1 and that he had carried away the key, so that the Excise Authorities had to break open the locks in order to obtain possession of the offending articles. That makes him the actual abettor of any offence which may have been committed in respect of the liquor; and he must be considered to be the actual offender in respect of the possession of a small capper still which was not included in his license. We agree with the Magistrate that it does not matter that he had removed from it, a small screw which will have to be adjusted before it can be worked, for that can be adjusted at any moment. The words of the section are uses or keeps or has in his possession any materials, still, utensils, implement or apparatus whatsoever for the purpose of manufacturing any excisable article.' So much for the question of misjoinder of charges and also for the question of the guilt of the petitioners on the charge of manufacturing scented liquor.
4. The evidence of Sarat Saha who is said to be an accomplice is only important on the 2nd part of the charge, namely, the transportation of liquor from one out still area to another. We do not think that Sarat can be considered to be an accomplice in law, inasmuch as he had been convicted of a different offence before this trial and he had nothing to gain or lose by the evidence he gave in Court; and we desire to draw attention to the dictum of Sir Barnes Peacock in Queen v. Elahi Bax 5 W.R. Cr. 80 : B.L.R. Sup. Vol. 459:'When the Judges speak of the danger of acting upon the uncorroborated evidence of accomplices, they refer to the evidence of accomplices who are admitted as evidence for the Crown in the hope or expectation of pardon.' Of course, other persons who have been directly concerned in the crime as principals may be still considered to be accomplices, even though convicted, as was held in the case of Queen v. Ramsodoy Chuckerbutty 20 W.R. Cr. 19. But in this case, it appears to us that this man Sarat, who was employed as menial servant and had been convicted as an instrument used for the conveyance of this liquor, had entirely ceased to be in the position of an accomplice witness. But if his evidence did require any corroboration, there is most ample corroboration on material points on the record. It is proved that he was the servant of the accused No. 2, that he was constantly present in the out-still and that day he took the liquor from the Railway station, and on the previous day the second accused had gone with him to the Railway station and purchased a ticket from Chakulia to Kharagpur. That seems to us to be corroboration of every material particular which was needed. Any further corroboration would only mean that the evidence of this witness was wholly unnecessary.
5. We, therefore, think that the conviction is right upon both the grounds and that the Rule must be discharged.