Decided on March 21,1960

SEWAN DAS Appellant
STATE Respondents

Referred Judgements :-



Dave - (1.)THIS is an application in revision by accused Sewandas, who has been convicted by the Special Excise Magistrate First Class, Jaipur, under sec. 54(a) of the Rajasthan Excise Act, 1950, for contravention of the provisions of sec. 19 of the said Act. He was sentenced to one year's R. I. and a fine of Rs. 1000/-. In default of payment of fine, he was further ordered to undergo 6 months' R. I. On appeal, his sentence has been reduced by the learned Sessions Judge, Jaipur City to 6 month's R. I. The sentence of fine has been maintained.
(2.)THE prosecution story in this case was, that on information being received that the petitioner and his son Tulsidas were in possession of illicit liquor, the Deputy Commissioner Excise Sodi Gulab Singh alone with the Inspector Shri Mohanlal raided the house of the petitioner on 2nd of August, 1958, in the presence of two witnesses of that vicinity and it is alleged that 4 tins of illicit liquor were recovered at the instance of Tulsidas and 23 tins were recovered from a cellar (Bukhari) at the instance of the petitioner. All the 27 tins were then seized. THE contents of the tins were sent to the Chief Public Analyst and thereafter the remaining quantity of seized liquor was put under seal. After usual investigation, both Sewandas and Tulsidas were prosecuted. THE trial court convicted both of them but on appeal Tulsidas was acquitted, since the learned Sessions Judge thought that the 4 tins which were said to have been recovered at his instance were also in possession of Sewandas. THE conviction of accused Sewandas was, however, maintained as referred above.
Learned counsel for the petitioner has very ably argued the case and raised two contentions before this court. The first contention is, that the prosecution has not been able to prove if the article which is said to have been recovered from the possession of the petitioner was an excisable article. The next argument is that even if it be taken to be proved that it was an excisable article, the prosecution has not been able to prove that it was in the exclusive possession of the petitioner.

It would be proper to take up the first point first. It is contended by learned counsel that even though the report of the Chief Public Analyst was got proved by calling him in the witness box, but, it was not clearly put to the witness if the article which he had examined was liquor, fit for human consumption. In this connection learned counsel has drawn the attention of this court to D.K. Marchant vs. State of Bombay (1). I have given due consideration to this argument and it may be observed that the facts in the case cited above were totally different from the facts and circumstances of the present case and the observations therein do not fittingly apply to the present case. In the case cited above, it was alleged by the prosecution that the accused had imported from Hyderabad-wadi to Dehu Road a spirituous drug labelled as "Cina 4-X". On behalf of the accused it was contended that Cina 4-X was a medicinal preparation and that it was unfit for use as an intoxicating liquor. It was held by the trial court that the substance was really Cina 4-X which was a medicinal preparation but at the same time it was also found that it was not unfit for consumption as an intoxicating liquor. It was in those circumstances that the learned Judges proceeded to observe that since there was no evidence it could not be held, if the contents of the preparation other than the alcoholic part was fit for human consumption. It may be further observed that the learned Judges referred to Sec. 244 of the Bombay Prohibition Act which laid down that nothing in Chap. III of the Act shall be deemed to apply to any medicinal preparation containing alcohol which is unfit for use as intoxicating liquor. When it was found by the courts below that the consignment which was seized contained medicinal preparation, then it was certainly incumbent upon the prosecution to prove that it was fit for use as an intoxicating liquor. In the present case, it was not even suggested by the accused, at any stage, in the two courts below, if the article which was seized from his possession was a sort of medicinal preparation. On the other hand, it may be pointed out that P. W. Gulab Singh and P.W. Mohanlal have stated that when the tins were seized the contents were tasted by the witnesses and it was found to be nothing but liquor. P.W. Mohanlal has stated that he himself had tasted it and it was nothing but liquor. The Chief Public Analyst has appeared in the witness-box and verified his report. I cannot certainly credit the prosecution for the manner in which the public Analyst was examined, but even then, it is clear from his statement that the material which was examined by him was illicit liquor. He has given the strength of the liquor in his report in detail and that report is. no doubt to the effect that the material seized was nothing but liquor and an excisable article. It is noteworthy, that the accused had not the courage to put a single question to the Chief Public Analyst by way of cross-exammation. In view of these circumstances, I have no doubt left in. my mind that the material which was seized from the possesion of the petitioner was nothing but liquor within the definition of sec. 3(15) and an excisable article within the meaning of Sec. 3(4) of the Rajasthan Excise Act, 1950.

The next question which arises for determination is whether the 23 tins which are alleged to have been recovered at the instance of the petitioner were in his possession. The Statements of P.Ws. Gulab Singh, Mohanlal, Ramchandra and Devisingh show that these tins were placed in a cellar (Bukhiri) below a staircase and the door was locked from outside. The lock of this door was opened with a key by the petitioner. It is contended by learned counsel for the petitioner that the key of the lock was handed over to him by his son Nathumal and therefore it should be presumed that the articles might be in the possession of Nathumal and not in the possession of the petitioner. Learned counsel has referred to the following 2 cases in support of his contention, Sughar Singh vs. Rex (2), and Jamwant Singh vs. State of Rajasthan (3). The first case was under the Arms Act but the observation made by the learned Judges may apply to any case. It was observed in that case as follows: - "It would appear from the above that it is practically well settled that the mere fact that an accused is the head of the joint family is not sufficient to hold that he is in possession of the articles recovered from the house'. It would depend on other circumstances whether his possession over the articles can be held to be proved or not. It is not possible to indicate what circumstances would suffice for a finding of his possession. Circumstances can be varied and they would be common with circumstance which can go to establish the possession of any other member of the house. Without being exhaustive, we may indicate that such circumstance can be the fact that the articles, which were recovered, were in such quantity or of such a size that their presence in the house could hot have been possible without its becoming known to the members of the household, including the head of the family. The article or articles may be lying openly in such a portion of the house where all members have free access. The articles might be in such use in the house as to force themselves to the notice of the members of the family." It may be observed that I respectfully agree with the observation, referred above and the mere tact that the accused is the head of the joint family, would not be sufficient to hold in every case that he must be in possession of the articles recovered from the house. It would depend upon the facts and circumstances of each case whether the articles recovered can be related to his possession. Now, in the present case, it appears that the house from which the liquor was recovered was taken on rent by the petitioner and not his sons, The rent-note Ex.P.5 is on the record of the trial court and it shows that the house was taken on rent by the petitioner. It is next proved that the lock of the Bukhari in which the tins were stored was opened by the petitioner himself. Learned counsel has no doubt tried to create a doubt about the possession of the petitioner by arguing that the key was handed over to him by his son Nathumal but in my opinion this circumstance alone is not sufficient to create valid doubt, because it was never pleaded by the accused at any stage that the Bukhari was not in his possession but in the possession of one of his sons. Moreover, it appears from the statements of Shri Gulab Singh, Mohanlal, Ramchand and Devi Singh that even at the time when the accused opened the Bukhari it was not even suggested by him that it was not in his possession. Over and above all these circumstances, one great factor in the present case is the huge quantity of liquor which has been recovered. It is impossible to believe that the petitioner would not know that 27 tins of liquor which was equal to 688 bottles was in his house.

There is no force in this revision application and it is hereby dismissed.


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