minal Appeal No 124 of 1959
Appeal by special leave from the judgment and order dated June 19 and 20 1959 of the former Bombay High Court in Criminal Appeal No 411 of 1959 arising out of the judgment and order dated March 17 1959 of the Presidency Magistrate XX Court Mazagaon Bombay in Case Nos
1952 54P of 1958
B M Mistri Ravinder Narain section N Andley J B Dadachanji Rameshwar Nath and P L Vohra for the Appellants
Nur ud din Ahmed and R H Dhebar for the Respondent 1960
November 18
The Judgment of the Court was delivered by IMAM J
The appellants were convicted under sections 65b 65f and 66b of the Bombay Prohibition Act of 1949 hereinafter referred to as the Act by the Presidency Magistrate XX Court Mazagaon Bombay
The appellant No 1 was sentenced to 9 months  rigorous imprisonment and a fine of Rs 1000 under section 65b
No separate sentence was imposed under the other sections
Appellant No 2 was sentenced to 6 months  rigorous imprisonment and fine of Rs 500 under section 65b
No separate sentence was imposed under the other sections
They appealed to the Bombay High Court against their convictions and sentence
The High Court set aside their convictions under sections 65b and 66b of the Act but maintained their conviction under section 65f  read with section 81 relying on the presumption against the appellants arising out of section 103 of the Act
The High Court accordingly directed that the sentence of imprisonment and fine imposed upon the appellants by the Presidency Magistrate under section 65b be regarded as the sentence of imprisonment and fine imposed on the appellants under section 65f read with section 81
66 518 According to the case of the prosecution there was a search on August 21958 of certain premises in the occupation of appellant No 1 on the third floor of Dhun Mansion Khetwadi 12th Lane
A complete working still was found there and both the appellants were working it
Appellant No 2 was pumping air into the cylinder with a motor pump while appellant No 1 was holding a rubber tube attached to the tank
An iron stand with a boiler on it was also found there
Below the boiler there was a stove which was burning
There was also a big jar near the still
According to the prosecution this big jar contained illicit liquor
Another glass jar was used as a receiver which according to the prosecution also contained 20 drams of illicit liquor
The boiler contained four gallons of wash
There were also 11 wooden barrels containing wash
In the drawing room of the premises a small glass jar containing 20 drams of illicit liquor a bottle of 1 12 drams of illicit liquor and a pint bottle containing 3 drams of illicit liquor were also found
A _panchnama was drawn up concerning the recovery of these articles
It was the case of the prosecution that the appellants were manufacturing illicit liquor and were in possession of a still and other materials for the purpose of manufacturing intoxicant and were also in possession of illicit liquor
The Presidency Magistrate was satisfied that a working still and illicit liquor in the glass jars and the two bottles were found in the premises in question
The High Court also was of the opinion that a working still was found there but it thought that it would not be safe to rely upon the conflicting and unsatisfactory evidence in the case to hold that illicit liquor had been found in the premises in question as it had not been satisfactorily proved that the bottles and the glass jars had been sealed in the presence of the panchas
The High Court was further of the opinion that there was no evidence on the record to show that the very bottles which were attached and the sample bottles in which was contained the wash were the bottles which were examined by the Chemical Examiner in respect 519 of which he made a report to the Magistrate
Accordingly it was of the opinion that the convictions under sections 65b and 66b could not stand
On behalf of the appellants it was urged that no presumption under section 103 of the Act could arise as it had not been established on the findings of the High Court that the still was an apparatus for the manufacture of any intoxicant as is ordinarily used in the manufacture of any intoxicant
It was further argued that no questions were put to the accused when they were examined under section 342 of the Code of Criminal Procedure in this connection and therefore they had been denied the opportunity to rebut the presumption
The Presidency Magistrate had not used the provision of section 103 against the appellants because he had found that in fact illicit liquor had been recovered from the premises and that the still was for manufacturing such intoxicant
If the Presidency Magistrate had at all intended to use the presumption under section 103 against the appellants he was bound to have given them an opportunity to rebut it
If at the appellate stage the High Court was of the opinion that it had not been established that any illicit liquor had been recovered as a result of the search then it ought not to have convicted the appellants on the presumption arising under section 103 without giving the appellants an opportunity to rebut the same
In this case the offence under section 65f would be the using keeping or having in possession a still or apparatus for the purpose of manufacturing any intoxicant other than toddy
It was not established by the evidence that the still or apparatus recovered from the premises occupied by appellant No 1 was one which is not ordinarily used for the manufacture of toddy
It was further urged on behalf of appellant No 2 that he could not be convicted either for being in possession of the still or under section 65f read with section 81 that is to say abetment of an offence under section 65f of the Act
This appellant was merely a servant of appellant No 1
If any one was in possession of the still it was appellant No 1
There was also no evidence to show that appellant No 2 had abetted 520 appellant No 1 in coming into possession of the still
Appellant No 2 was merely using the pump presumably under the orders of his master and as he could not be said to be in possession of the still no presumption against this appellant could arise under section 103 of the Act
We would deal with the case of appellant No 2 first
There is no evidence that he in any way aided his master to come into possession of the still
It would be reasonable to suppose that when he was using the pump he was doing so on the orders of his master and he may not have been aware of what was being manufactured whatever suspicion may arise from his conduct
It cannot also be said that he was in possession of the still
The still was in the possession of his master
He was merely an employee in the premises and cannot be said to be in physical possession of things belonging to his master unless they were left in his custody
It seems to us that whatever suspicion there may be against the appellant No 2 it cannot be said that it has been established beyond reasonable doubt that he was in such possession of the still as would amount to an offence under section 65f of the Act
In the circumstances no presumption could arise under section 103 against him that he was in posses sion of the still for which he could not account satis factorily
We would accordingly allow the appeal of appellant No 2 and set aside his conviction and sentence
So far as the appellant No 1 is concerned there can be no question that he was found in possession of a still which having regard to the nature of the still as disclosed by the evidence is ordinarily used for the manufacture of an intoxicant such as liquor
Having regard to the description of the still as found on the record we are satisfied that the still in question is not ordinarily used for the manufacture of toddy
Indeed it is doubtful that any still is required for the manufacture of toddy because toddy is either fermented or not
If the toddy is unfermented the need for a still is unnecessary
On the other hand if the toddy is fermented the process of fermentation is a natural 521 one and does not require the aid of any apparatus to ferment it
It was said however that by heating the toddy a higher degree of fermentation takes place and it becomes more potent
We have however no evidence on the record as to this
Even if we assume that toddy when heated becomes highly fermented and therefore more potent there is nothing to show that the heating process to achieve this required an elaborate still of the kind found in the premises of appellant No 1
It was however pointed out that no questions were put to the appellant in order to give him an opportunity to rebut the presumption arising out of section 103 of the Act
It is however to be remembered that when the appellant was examined under section 342 of the Code of Criminal Procedure he had volunteered the statement that he did not know about the various contraband seized by the police
Since this was his attitude in the matter it is difficult to understand what further questions could have been put to him to explain the possession of the still and the various other articles found in the premises occupied by him
It is not possible to say in this particular case that this appellant had been prejudiced by the failure of the Magistrate to put to him any specific questions about the still and the other articles found in the premises occupied by him
The presumption which arises under section 103 of the Act is that an offence under the Act is committed where a person is found in mere possession without further evidence of any still utensil implement or apparatus whatsoever for the manufacture of any intoxicant as are ordinarily used in the manufacture of such intoxicant until the contrary is proved
it is difficult to conceive that the appellant could have given any satisfactory evidence to establish that the still and other articles found in the premises occupied by him could ordinarily be used for the manufacture of toddy
We are accordingly satisfied that there was no prejudice caused to the appellant in the circumstances of the present case when the High Court relied upon the presumption arising under section 103 522 to uphold his conviction under section 65f of the Act
It was finally urged that the sentence should be reduced
In our opinion the sentence imposed cannot be said to be unduly severe having regard to the provisions of the Act
Accordingly the appeal of appellant No 2 is allowed and his conviction and sentence are set aside but the appeal of appellant No 1 is dismissed
Appeal disposed of accordingly


Summary:
During the search of the premises of the appellant No 1 a complete working still was found which was being worked by the appellant No 1 and his servant appellant No 2
The presidency Magistrate was satisfied that a working still and 516 illicit liquor were found
The appellant No 1 was examined under section 342 of the Code of Criminal Procedure he volunteered the statement that he did not know anything of the contraband seized by the police  so no specific question about the still and other articles recovered from his premises were put by the Presidency Magistrate who convicted the appellants under sections 65b 65f  66b of the Bombay Prohibition Act relying on the facts of the recovery of still and illicit liquor and did not use the provision of section 103 for presumption against the appellants
The appellants on appeal by special leave contended 1 that no presumption under section 103 of the Act could arise  and that he had been denied the opportunity to rebut the presumption under section 103 of the Act as no questions were put to them when they were examined under section 342 of the Code of Criminal Procedure 3 that as the Magistrate had not used the provision of section 103 for presumption against the appellants the High Court ought not to have convicted the appellants on the presumption arising under section 103 of the Act without giving them an opportunity to rebut the same
On behalf of appellant No 2 it was further urged that he was merely a servant of appellant No 1 if any one was in possession of the still it was appellant No 1 and no presumption against him could arise under section 103 of the Act
Held that when an accused is examined under section 342 of the Code of Criminal Procedure and volunteers statement denying all knowledge of articles recovered from his possession no prejudice is caused to him if no further questions are put to explain the possession of articles found in the premises occupied by him
The presumption which arises under section 103 of the Bombay Prohibition Act is that an offence under the Act is committed when a person is found in mere possession without further evidence of any still utensil implement or apparatus whatsoever for the manufacture of such intoxicant until contrary is proved
Thus no prejudice was caused to the appellant No 1 when the High Court relied upon the presumption arising under section 103 of the Act to uphold his conviction under section 65f of the Act
Held further that it cannot be said of merely an employee in the premises that he was in physical possession of the things belonging to his master unless they were left in his custody Where an offence under section 65f of the Bombay Prohibition Act has not been established beyond reasonable doubt and the possession of still does not amount to an offence under the section no presumption could arise under section 103 of the Act against a person that he was in possession of the still for which he could not account satisfactorily
In the instant case the still being in the possession of the master and there being no evidence that the employee in any 517 way aided his master to come into possession of the still it could not be said that the appellant No 2 was in such possession of the still as would amount to an offence under section 65f of the Act