Case: Maharaj Prithvisinghji Bhimsinghji Vs. State of Bombay

1. The appellant was tried by a Magistrate of 1st Class of Abu Road for an offence punishable under Ss. 65(a) and 66(b) of the Bombay Prohibition Act, 1949 (Bombay Act XXV of 1949), hereinafter referred to as the Act. His servant Gangaram Makarji, accused No. 2, was also tried along with him under the aforesaid sections. A third accused in the case was the driver of the jeep car but the Magistrate did not frame any charge against him. He was accordingly discharged. The appellant was sentenced by the Magistrate to 6 months S. I and a fine of Rs. 500 under S. 65(a) of the Act and to 3 months S. I. and a fine of Rs. 500 under S. 66(b) of the Act. The sentences of imprisonment were directed to run concurrently. His servant Gangaram Makarji was sentenced to one months S. I. and a fine of Rs. 100 under S. 65(a) of the Act and to 15 days S. I. and a fine of Rs. 100 under S. 66(b) of the Act. the sentences of imprisonment were directed to run concurrently.2. The appellant appealed to the Sessions Judge of Mehsana against his conviction and sentence. The Additional Sessions Judge, who heard the appeal, allowed it and set aside the conviction and sentence of the appellant. Against this order of acquittal the State of Bombay appealed to the Bombay High Court and that Court allowed the appeal, set aside the order of acquittal and convicted the appellant under Ss. 65(a) and 66(b) of the Act and restored the order of conviction and sentence passed by the Magistrate. The appellant obtained special leave to appeal against his conviction and sentence.3. The facts established that the appellant and his servant Gangaram Makarji travelled from Delhi to Abu Road by the 201 UP train from Delhi which reached Abu Road at 3.45 p. m. on February 1, 1954. The appellant travelled in a 1st Class compartment while his servant travelled in a servants compartment. At Abu Road station the appellant detrained and his servant took out his luggage and followed his master to the 1st Class waiting room. After sometime the appellants luggage was loaded into the trailer attached to a jeep car the driver of which was the discharged accused No. 3. Sometime later, the appellant got into the jeep and when the jeep was about to start, Jamedar Shri Sheikh stopped it in order to make a search in connection with a suspected offence. The appellant asked his servant Gangaram Makarji to produce the keys. The luggage was thereafter searched. On search 76 bottles of foreign liquor were found in the trunks belonging to the accused as well as two half consumed bottles, one of which was in an attache case. The appellant, his servant Gangaram Makarji and the driver of the jeep were arrested. On these facts, it is the case of the prosecution that offences under Ss. 65(a) and 66(b) of the act were committed by the appellant.

Reasoning: 9. It would appear from the finding of the High Court that it would have hesitated to differ from the Sessions Judge on this vital issue whether Gangaram had an opportunity to place the bottle in the attache case were it not for the fact that there was no evidence to show that this accused entered the 1st Class compartment at Abu Road station. What was found in the attache case is the most important aspect of all the circumstances in determining whether the appellant was aware of the existence of so many bottles of liquor in his luggage. If Gangaram had no opportunity to place the bottle in the attache case, whatever may be said about the lack of knowledge on the part of the appellant regarding the contents of the trunks, the attache case being in his personal use during his journey from Delhi to Abu Road, the inference would be that he had knowledge of the existence of the bottle with the label Gordons Dry Gin on it in his attache case as the probabilities are that he would have used his attache case during the journey, particularly when a leather spectacle case was found in it, without the spectacles, and the appellant had on a pair of spectacles at Abu Road Station. As it has already been stated the opportunity to place the bottle in question in the waiting room at Abu Road station has not been considered by the High Court.10. Even assuming that this bottle with the label Gordons Dry gin in the attache case was there to the knowledge of the appellant, the further question which arises for consideration is whether it contained any intoxicant. If it is not established that the contents of this bottle were intoxicant within the meaning of the Act it will be impossible to make use of the finding of the bottle with a label Gordons Dry gin on it as a circumstance to indicate that the appellant had knowledge of the existence of the numerous bottles of foreign liquor in his trunks. Liquor has been defined in the act under S. 2(24) to include spirits of wine, denatured spirits wine, beer, toddy and all liquids consisting of or containing alcohol and any other intoxicating substance which the State Government may, by notification in the Official Gazette, declare to be liquor for the purposes of the Act. Intoxicant, under S. 2(22) of the Act, means any liquor, intoxicating drug, opium or any other substance which the State Government may, by notification in the Official Gazette, declare to be intoxicant. What is prohibited under S. 65(a) is the import or export of any intoxicant or hemp in contravention of the provisions of the Act. Similarly, under S. 66(b) what is punishable is for any one, in contravention of the provisions of the Act, to consume, use, possess or transport any intoxicant or hemp. These sections do not make punishable the mere import or possession of alcohol. All the evidence in the present case to prove that the bottle in the attache case was an intoxicant within the meaning of the Act is the evidence that, on uncorking, the bottle smelt of liquor. The evidence of the District Inspector of Prohibition and Excise, Veljibhai Virsingbai Chodhari, P. W. 8 was that the contents of this bottle were not sufficient to enable a test to be done scientifically and that the test by smell cannot give the percentage of alcohol. There is, therefore, no clear proof that the liquid contained in this bottle found in the attache case was, in the first place, liquor and, in the second place, if liquor, that it was an intoxicant within the meaning of the Act. It is to be remembered that at least upto Sirohi Road station possession and consumption of intoxicating liquor was no offence. If the bottle smelt of alcohol when it was uncorked at Abu road station that would not necessarily prove that the liquid contained therein was, infect, any intoxicant. Even if water or any liquid other than liquor had been poured into a bottle which had recently contained liquor the smell of alcohol would still be there. It seems to us that this aspect of the matter has not been considered by the High Court in assessing the evidence. It is on the assumption that this bottle contained an intoxicant within the meaning of the Act that the High Court came to the conclusion that at least in respect of this bottle the appellant had full knowledge that it contained foreign liquor. Consequently, possession of this bottle and of importing it into an area where the Act applied would in itself be an offence punishable under S. 65(a) and S. 66(b) of the Act and an inference could be drawn that the appellant was also possessing and importing liquor in contravention of the provisions of the Act. On the other hand, if there is no clear proof that the contents of this bottle were intoxicant within the meaning of the Act the existence of this bottle in the attache case does not necessarily lead to the conclusion that the appellant had knowledge of the existence of the 76 bottles of foreign liquor in his trunks. Indeed, as we read the judgment of the High Court, it is the existence of this bottle in the attache case which has seriously affected its conclusion in drawing an inference against the appellant on the circumstantial evidence in the case.If no adverse inference can be drawn against the appellant from the existence of this bottle in the attache case, then can it be safely inferred that from the mere existence of the 76 bottles of foreign liquor in the trunks of the appellant that he had knowledge of their existence?It has been proved beyond any question that although the ownership of these trunks in the appellant, the entire handling of these trunks, their packing and unpacking, was in the hands of his servant Gangaram Makarji who had in his possession their keys. In one of these trunks the personal belongings of Gangaram Makarji were also found. The likelihood of Gangaram Makarji, taking advantage of his control and possession of his masters luggage, to bring into Abu Road a large quantity of liquor for his own purpose and profit cannot altogether be excluded. Gangaram Makarji may well have calculated that having regard to the status of his master his luggage was unlikely to be searched. In our opinion, the view of the Sessions Judge that Gangaram Makarji might have been bringing the liquor to Danta to make money and that the appellants luggage would not be searched cannot be said to be entirely unreasonable.The circumstantial evidence in the case is not of that kind from which the only inference that could reasonably be drawn was that the appellant had knowledge of the contents of his luggage and that he had accordingly possessed and imported an intoxicant, in contravention of the provisions of the Act. That being the position it is not possible to convict the appellant.