- (1.) This is an appeal by the State of Madhya Pradesh against the judgment and order of the High Court of Madhya Pradesh dated March 4, 1964 in Criminal Revision No. 307 of 1963 by which the conviction and sentence passed on the respondent Banarasilal under section 34 (a) of the Madhya Pradesh Excise Act was set aside. The respondent is a proprietor of a hotel known as "Apna Hotel" situated at lndore. On August 24, 1959 the Station House Officer, Sanyogita Ganj Police Station, raided the hotel and found seven bottles of foreign liquor at the counter of the hotel which he seized and took in his possession. The prosecution under the above section followed because possession of liquor in a hotel is prohibited by a notification issued by the Madhya Pradesh Government and published in the Gazette of July 31, 1959 under the powers conferred on the Government by section 16 (4) of the Madhya Pradesh Excise Act. We shall refer to the terms of the notification and the section presently. The respondent was found guilty and was sentenced to imprisonment till the rising of the Court and to a fine of Rs. 100 and in default, to further imprisonment for 15 days. In revision the High Court set aside the conviction and sentence because in the opinion of the learned single Judge who decided the case the notification was ultra vires the section and no offence was, therefore, committed. Or. A. No. 253 of 1964 decided on 30-9-1966 against the judgment and order dated 4-3-1964 of the M. P. High Court (lndore Bench), in Cr. R. No. 307 of 1963,
(2.) Section 16, to which we have referred, reads as follows:- "16. (1) The State Government may, by notification prescribe a limit of quantity for possession of any intoxicant: Provided that different limits may be prescribed for different qualities of the same article. (2) No person shall have in his possession any quantity of any intoxicant in excess of the limit prescribed under sub-section (1), except under the authority and in accordance with the terms and conditions of :- (a) a licence for the manufacture, cultivation, collection, sale or supply of such intoxicant, or (b) a pass for the import, export or transport of such intoxicant, or (c) a permit granted under this Act. (8) Sub-section (2) shall not apply to any foreign liquor- (a) which is in the possession of any common carrier or warehouseman as such, or (b) which is lawfully procured by and in the possession of any person for his bona fide private consumption and not for sale; (4) Notwithstanding anything contained in the foregoing sub-sections, the State Government may, by notification prohibit the possession by any person or class of persons either in the State or in any specified area, of any intoxicant, either absolutely, or subject to such conditions as it may prescribe."
(3.) The notification which was issued under the last sub-section and which is the subject-matter of debate in the case reads as follows:- "E. SECTION 16 (4)- (a) No person shall possess any Charas. (b) No person shall possess any intoxicant in any quantity which has not been lawfully manufactured or lawfully obtained. (c) No person shall have any country or foreign liquor in his possession in any restaurant, hotel, cafe, shop of aerated water and Sharbat unless such place is licensed for the sale or consumption of country or foreign liquor: Provided that a bona fide traveller may possess country or foreign liquor within the limits allowed in the room occupied by him in a hotel in which he is staying.";