Decided on August 29,1972

STATE Appellant


- (1.) THIS is an appeal against the acquittal of the two respondents for offence under Section 394 (1) (a) (ii) r/w Section 471 of the Bombay Municipal Corporation Act, hereinafter referred to as 'the Act'. Junior Municipal Inspector 'g'/south Ward paid a visit on 13-11-69 to a shop of 'm/s. Bharat Chemical Works. ' He learnt that both the respondents father and son were partners of the said firm, and that the concern was dealing in liquid soap, white cleaning acid, bleaching powder and chemicals. In the course of search, he found 24 bottles of disinfectant liquid (essence of phenyle), each bottle containing 600 grams of phenyle, 24 bottles of hydrochloric acid each containing 6. 50 kgs. , 24 bottles of Acetic acid each containing 4 kgs. , 2 kgs. of Petroleum jelly and insecticide powder, 10% BHC 72 Packets each of 100 Gms. Possession of these articles by the concern in excess of the quantity permitted under the Schedule 'm' without licence was in violation of Section 394 (1) (a) (ii) of the Act read with Part II of Schedule 'm' of the said Act. Three cases were lodged against the two respondents on or about 9th February, 1970 being cases Nos. 324/ml of 1970, 325/ml of 1970 and 326/ml of 1970. At the trial the three cases were virtually consolidated and tried together. Inspector More was examined to prove that these articles were actually found inside the shop and that accused did not possess any licence. He, however, admitted in cross-examination that the accused brings such substances and turns them into small ones, but asserted that the accused purchased big packages for selling in small quantities. He admitted that accused No. 2 was impleaded by him only on the basis of the information given to him by accused No. 1. Accused No. 1 admits that the said substances were actually found in the premises of his concern, but stated that accused No. 2 had nothing to do with the concern though he was his son. He denied that he was selling such small packages. He asserted that he turns the substances of big packages into small ones for charges and returns the same to their owners. According to him, this process is completed "within a few hours". He thus denied that he "kept", these substances within the meaning of Section 394. Accused No. 2 denied that he had any concern with the business.
(2.) THE learned Presidency Magistrate acquitted accused No. 2 for want of any evidence of his connection with the Concern, He acquitted accused No. 1, as prosecution failed to prove that articles were "kept" by the accused for sale or any other permanent purpose. This order of acquittal dated 26th August, 1970 is challenged in this appeal by the State.
(3.) MR. Jahagirdar, the learned Assistant Government Pleader, pressed his case only against accused No. 1 and very fairly conceded that there was no evidence to connect accused 2 with the possession of the articles found. He, firstly, contends that the learned Magistrate has confused the requirements of Section 394 (1) (b) with those of Section 394 (1) (a) of the Act, This contention appears to me to be correct. Even references in the text of the judgment to the relevant clauses in the title and in para. 1, and para. 6, display this confusion. In the first para, he has referred to Section 394 (1) (a), while in the title he has referred to the charge being under Section 394 (1) (a) (ii) of the Act and yet while discus* sing the guilt or otherwise of the accused in para. 6 of his judgment, he has referred in terms to Section 394 (1) (b ). Now Section 394 (1) (b) certainly makes an act of "keeping" etc. of the articles specified in Part III of Schedule 'm' in any premises an offence if the same are so kept without licence "for sale or for other than domestic use". As against that, Section 394 (1) (a) makes an act of mere keeping, etc. of articles mentioned in clauses (i) and (ii) thereof in excess Of the quantity specified in Parts I and II of Schedule 'm' without obtaining the required licence, an offence, without regard to the purpose for which these articles are so kept. This Sub-clause (a) thus contemplates an absolute prohibition for excess quantity In the absence of licence. Reasoning thus adopted by the learned Magistrate ignores this distinction and is obviously erroneous and contrary to the plain wording of the sub-clause with which the accused have been charged, An unreported judgment of Chandurkar, J. dated 23-12-1970 (Bom) in Criminal Appeal No. 826 of 1969 cited by him supports the contention of Mr, Jahagirdar.;

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