BALBIR SINGH AND ANR. Vs. THE STATE
LAWS(GAU)-1958-7-7
HIGH COURT OF GAUHATI
Decided on July 10,1958

Balbir Singh and Anr. Appellant
VERSUS
THE STATE Respondents


Referred Judgements :-

MISS KISHORI SHETTY V. THE KING [REFERRED TO]
STATE OF BOMBAY VS. F N BALSARA [REFERRED TO]
BIDI SUPPLY CO VS. UNION OF INDIA [REFERRED TO]



Cited Judgements :-

BENUDHAR SAIKIA AND ANR VS. S K BHATTACHARYA AND ANR [LAWS(GAU)-1960-5-6] [REFERRED]


JUDGEMENT

G. Mehrotra, J. - (1.)THIS is a revision against the decision of the Sessions Judge, Upper Assam Districts, who confirmed the conviction and sentences passed against the two applicants"Balbir Sing and Inderjit Sing by Sri A. Ahmed, Magistrate, 1st Class at Jorhat. Applicant No. 1 was convicted under Section 61 -A of the East Bengal and Assam Excise Act -hereinafter called the Act and applicant No. 2 was convicted under Section 53(l)(a) of the Act, Each of these two applicants were sentenced to six months' rigorous imprisonment and to pay a fine of Rs. 500/ - in default to undergo another period of three months' rigorous imprisonment.
(2.)THE prosecution case is that on 21 -11 -54 the Excise Inspector under the authority of a search war - rant searched the Broadway Hotel and restaurant including its kitchen and recovered one bottle of Heyward's brandy, one kettle containing liquor, one bottle containing about a dram of Hey ward's brandy, one bottle containing traces of Heyward's whisky, six empty bottles of Heyward's whisky, rum, brandy, one tumbler with smell of liquor, from the kitchen and from the drawer of the Manager's secretariat table, one bottle containing about 2 1/2 ounces of Heyward's whisky was recovered.
There were other documents recovered from the table of the Manager which is not very material. On the recovery of these articles, Inderjit Sing, applicant No. 1, the manager of the hotel, John Games, Assistant Manager and Baldev Raj, the cook were arrested. Balbir Sing Bedi, applicant No, 2 later surrendered. The charge was denied by the two applicants. So far as the factum of recovery is concerned, the Court below believed the story given by the Deputy Superintendent of Excise and we do not think that in revision we can interfere with that finding. Balbir Sing is said to be the de facto proprietor of the hotel. The licence of the hotel stood in the name of his minor son Jasbir Sing Bedi.

The Sessions Judge held that Balbir Sing was the de tacto proprietor of the hotel although the licence stood in the name of his minor son. He also found that Balbir Sing knowingly permitted the hotel to be used for the storage of the incriminating articles. The Sessions Judge remarks that it was unthinkable that such a large number of incriminating articles would be kept in the hotel without the conscious knowledge and permission of the de facto proprietor. Section 61A of the Act is as Follows ; Whoever, being the owner or occupier or having the use of any house, room, enclosure, space, vessel, vehicle or place, knowingly permits it to be used for the commission by any other person of an offence punishable under Section 53, S. 54 or Section 55, shall be punished with imprisonment which may extend to two years, or with fine or with both,

Section 53 of the Act runs as follows:

Whoever, in contravention of this Act or of any rule, notification or order made or issued under this Act, or of any licence, permit or pass granted under this Act, imports exports, transports, manufactures possesses or sells any intoxicant other than tari and pachwai shall be punished with imprisonment which may extend to two years and with fine.

The possession of an intoxicant is therefore an offence under Section 53 and if the owner or occupier allows the use of the building for storage of these incriminating articles, he would be guilty under Section 61 -A. In order therefore to convict Balbir Singh under this section, it was not only necessary to prove that he was the owner of the hotel, but it was further necessary to prove that he knowingly permitted the building to be used for the commission of an offence. The Sessions Judge, as we have already pointed out, has come to the conclusion that the hotel building was permitted to be used for the storage of incriminating articles.

This inference was drawn by the Sessions Judge from the recovery of a large quantity of intoxicant from the kitchen of the hotel. There is no evidence from which it could be interred that the applicant Balbir Singh permitted the hotel for the storage of the incriminating articles. The articles were recovered mostly from the kitchen. The small quantity of liquor which was recovered from the office was also found from the drawer of the manager's table, the manager is himself being tried for possessing these articles. Unless therefore it pan be established J -that there was some sort of implied consent by the owner to carry on this activity in the hotel premises, it cannot be said that the applicant permitted the hotel building to be used for such illegal purposes.

It is also not clear from the finding of the Court below that the applicant was the owner of the building. As the business of the hotel was carried on by the applicant, it could legitimately be argued that he was constructively in occupation of the building; but as we have already stated, we find that there is no evidence to prove the consent of the applicant nor have any circumstances been pointed out by the prosecution from which an irresistible inference can be drawn that the manager permitted the use of the building for the purposes of committing an offence under Section 53 of the Act. The case against the applicant Balbir Singh has, in our opinion, not been proved.

(3.)COMING to the case of Inderjit, he has been convicted under Section 53 for possessing the liquor. The liquor found from kitchen cannot be said to be in possession of the manager unless the prosecution could prove that it was kept there by the order of the manager. As regards the recovery of 2 1/2 ounces of whisky from the office drawer of the manager, it can be said that he was in possession of the liquor and is liable to be convicted under Section 53, in case it is proved that this was in contravention or any provision of the Act, rule or notification made thereunder. On 25 -8 -1953 a notification was issued by the State Government under Section 17(3) of the Act which runs as follows:
In exercise of the powers conferred by sub -s. (3) of Section 17 of the Assam Excise Act, 1910 (East Bengal and Assam Excise Act of 1910), as amended, and in supersession of Notification No. REX. 91/52/i 22, dated 30 -1 -1953, the Governor of Assam is pleased to prohibit the possession of liquor by any person in hotels, restaurants, tea -stalls, shops, places of public amusements including kitchens or in any room attached to a kitchen of such establishment, or in any house or room used by the proprietor or an employee for personal purposes within the compound of a hotel, restaurant, tea -stall, shop or place or public amusements in the district of Lakhimpur, Sibsagar, Darrang, Nowgong, Kamrup, Goalpara and Cachar and also in Shillong Municipality excluding so much of the area as comprised within the autonomous district of the United Khasi and Jaintia Hills, unless such a place is covered by a license issued under the said Act. Possession of liquor is also prohibited in ferries and ferry approaches, railway stations, steamer -ghats and Airports throughout the above areas except where such possession is in course of transit and within the limit of private possession permissible under the Act.

The validity of Section 17(3) has been challenged and it is contended that it is unconstitutional as it is violative of Article 19(1)(f) and Article 14 of the Constitution. Sub -section (3) of Section 17 of the Act reads a3 follows:

Notwithstanding anything contained in sub -ss. (1) and (2), the State Government may, by notification, prohibit the possession by any person or class f>f persons, either throughout the whole of the territories to which this Act applies or in any local area comprised therein, of any intoxicant, either absolutely or subject to such conditions, as it may prescribe." Intoxicant has been defined in Section 3(12)(a) as any liquor or intoxicant drug. Liquor has been defined as any intoxicant liquor and further includes all liquid consisting of or containing1 alcohol; also tari and pachwai in any form and any substance which the State Government may, by notification declare to be liquor for the purposes of this Act. The argument is that Article 19(1)(f) of the Constitution guarantees a fundamental right to a citizen to hold and possess any property which includes both moveable and Immovable properties. The Act, when it gives powers to the Government by notification to restrict the possession of the liquor, is violative of the fundamental rights guaranteed under Article 19(1)(f) unless such a legislation is saved by Clause 5 of Article 19.

In cases of liquids containing alcohol which are used as beverage, any power given to the Government to restrict the use of such a liquor cannot be regarded as unreasonable, having regard to the directive principles of the Constitution. But as the word 'liquor' also includes any liquid containing alcohol, it covers liquids which may be used as toilet or as medicine. In such cases, it cannot be said that it will be in consonance with the directive principles of the Constitution to prohibit entirely the use of such liquids and any restriction on use of such liquids will be unreasonable restriction and thus violative of Article 19(f) of the Constitution. In this connection it was further argued that the unconstitutional provisions are not severable from the constitutional provisions and consequently the entire Section 17(3) is invalid.



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