MODI, J. - (1.) - This appeal raises a question of considerable importance regarding the correct interpretation of sec. 3(4) (iii) of the Rajasthan Excise Act (Act No. II of 1950) (hereinafter called the "Act"). By cl. (4) of sec. 3 of the Act, the expression "excisable article" has been defined as follows: - (4) "Excisable Article" means and includes - (i) Spirit, fermented liquor and any alcoholic liquor for human consumption, or (ii) any intoxicating drug, or (iii) Stills and other appliances for disdilation, and fermented wash or other material for distillation, or (iv) any other article which the State Government may from time to time declare to be an "excisable article" for the purposes of this Act. In the case before us, the accused-respondent was alleged to have been found in possession of two earthen pitchers full of fermented wash and, therefore, he was prosecu;ed under S. 54(d) of the Act. The First Class Magistrate, Sikar, convicted him, but on appeal, the Additional Sessions Judge, Sikar, acquitted him. The finding of the learned Judge, put succinctly, is that even if the accused was found as alleged, in possession of 2 earthern pitchers full of fermented wash that was not, by itself, an excisable article and did not amount to an offence under the Act. And in coming to this conclusion, the learned Judge put the interpretation on sulci. (111) of cl. (4) of sec. 3 according to which, it was not enough that the accused should have been found in possession of mere "fermented wash" but he must have also been found along with it in possession of a "still or other appliances for distillation" and as that requi-rement was not satisfied in the present case, the conviction of the accused would not be possible in law. The learned Government Advocate in this appeal strongly challenged the cor-rectness of the view which found favour with the learned Judge below, and we think that in this submission he is correct.
(2.) BUT, before we give our reasons for the conclusion to which we have come, we think that in fairness to the learned Judge, we should reproduce the ratio of his decision in his own words : - "In this definition the word "and" between "distillation" and "fermented" (wash) is significant and by it, it clearly means that there should be appliances and material. Mere material would not suffice. In other words so far as the instant case is concerned, the possession of fermented wash alone is not possession of any excisable article as defined under above section. Apart from the possession of the fermented wash there should have been appliances for distillation. It is very clear in the above definition that stills and other appliances for distillation and fermented wash should be there so as to come under the definition of excisable articles. If fermented wash or other material for distillation would have been (an) excisable article, it would have been separately incorporated in the above section, as has been done in other cases in sub-sec. (4). There would have been a separate number for fermented wash or other material for distillation and it would not have been con-juncted by the word "and" after the words "stills and other appliances for distillation". Hence I am of opinion that the possession of the two pitchers of the fermented wash is no offence by itself." We have carefully considered the above reasoning and have no hesitation in saying that it is incorrect. It must be remembered, in the first place, that the definition of an excisable article given in cl. (4) is an inclusive definition and enumerates the various articles winch are intended to fall within that phrase and, further, it includes in that definition certain articles connected with the distillation of liquor which would otherwise not fall within its ambit. It is in this context that in sub-cl. (iii) it is provided that the term "excisable article will also include "stills and other appliances for distillation" and "fermented wash or other material for distillation". The further question for consideration, and that is, the crucial point raised before us is : whether the word "and" which occurs between the two expressions, namely, "stills and other appliances for distillation", in this sub-clause has been used in a conjunctive sense or in a disjunctive one. We are disposed to hold, having regard to the object of the Act and the various provisions contained therein, to some of which we will presently refer, that the word "and" which has created so much trouble in this case,' should be read as "or . We may in this connection draw attention to the first sub-clause of this very clause, which fully expanded, would read as under: "Excisable article means and includes spirit, fermented liquor and any alcoholic liquor tor human consumption. If the approach of the learned Judge were correct, then by parity of reasoning the possession by a person of fermented liquor, or even alcoholic liquor, for human consumption, within the meaning of this sub-clause, would not amount to the possession of an excisable article, unless such person was in possession of both of them at the material time, which, in our opinion, would be an obvious absurdity. As stated in the preamble, the object of the Act was to consolidate and amend the law in this State relating to the import," export, transport, manufacture sale and possession of intoxicating liquor and of intoxicating drugs. And, in pursuance of this object, the Act has, as we shall have occasion to point out hereafter, penalised the possession of appliances as well as material for illicit distillation, that is; unless a proper license is obtained for the requisite purpose from competent authority. The proper way, therefore, in our opinion, in which sub-cl. (iii) should be read is as follows: - "Stills 'or' other appliances for distilltion 'or' other material for distillation." That such an interpretation would not violate any rules of the interpretation of statutes, would be clear when we point out that there is authority for the proposition that "or" can be read for "and" and vice versa, where it may be necessary to do so to carry out the intention of the legislature. Thus in The King Vs. Governor of Bux on Pnson(1) it was held that where 43 Eliz.-1, Chapter 3, spoke of property to be employed for the maintenance of "sick" and maimed soldiers", the legislature referred to soldiers who were either the one "or" the other, and not only to those who were both. In support of the interpretation, which we have felt disposed to put upon the sub-clause in question, we would draw attention to cl.(g) of sec. 16 which occurs in Chapter IV of the Act, and deals with restrictions imposed by the Act on the manufacture, possession and sale of the excisable articles (properly so called) and reads as follows: - "No person shall use, keep or have in his possession any materials, still, utensil, implement, instrument or apparatus, whatsoever for the purposes of manufacturing any excisable article, except under the authority and subject to the terms and conditions of a license granted in that behalf by the Excise Commissioner or by an Excise Officer duly empowered in this behalf." It would be quite obvious from this provision that it is not the combined possession of the appliances for distillation 'and' of the materials therefor which is sought to be reached by this provision, but an embargo had been put on use or possession of each one of them taken individually, such as materials, still, implement, instrument or apparatus whatsoever, the pre-requisite condition ofcourse being that such materials or appliances are intended to be used for the purposes of manufacturing any excisable article in the sense of an intoxicant for human consumption. Let us next look at the provision contained in sec. 54 of the Act which forms part of Chapter IX which is headed as 'offences and penalties'. Clause (a) of this section makes punishable the import, export, transport, manufacture, collection, sale or possesion of an excisable article. Then cl. (d) is important for our purposes. This clause reads as follows: - "Uses, keeps or has in his possession any materials, still, utensil, implements, or apparatus whatsoever for the purpose of manufacturing any excisable article other than Tari." The point that we wish to make is that as a logical conclusion to the provision contained in sec. 16(g) to which we have referred above, this clause makes punishable the possession of any material, still, utensil, implements or apparatus whatsoever, each taken by itself, the governing purpose thereof ofcourse being the manufacture of any excisable article. The expression "excisable article" as used in the last part of this clause as also in clause(a) properly appears to us to carry the narrower meaning as provided for in sub-clauses (i) & (ii) of clause (4) of sec. 3. Reading all these provisions together, we have no hesitation in holding that the correct interpretation to put on sub-clause (iii) of clause (4) of sec. 3 of the Act would be not to read 'and' therein as conjunctive as held by the learned Judge below, but to read it as 'or' so that the possession of a still or any other appliance for distillation as well as the possession of fermented wash or similar other material for distillation would fall within the mischief of clause (b) of sec. 54 of the Act. We may also point out that if this was not the intention of the legislature, then it was no use making a provision in the Act to the effect that the possession without authority of materials for the purposes of distillation, per se, or the like possession of appliances for distillation like a still or utensil, would be a crime and punishable. Putting the whole thing in a slightly different way, we may say that the factor that possession of instruments or appliances for distillation such as a still or the possession of materials for distillation such as fermented wash, has been in each case made punishable, furnishes the key to the proper interpretation of sub-clause (iii) (g) clause (4) of sec. 3, which we are called upon to interpret here, and we are of the view that it is by a harmonious reading of the various provisions that we have discussed above that we can discover the true intent of the legislature, and we have no doubt that the interpretation which we have put on sec. 3(4)(iii) brings out that true intent. Finally, what seems to have weighed heavily with the learned Judge below was that the legislature had not mentioned the component parts of the fourth sub-clause in separate sub-clause which, according to the learned Judge, must have been done, if the intention was to make the broad categories contained therein, to wit, (1) the appliances for distillation and (2) materials for dis illation, excisable articles taken separately by themselves. To our mind, this argument is fallacious. As we have pointed out above, even the first sub-clause of clause (4) mentions (i) fermented liquor and (ii) alcoholic liquor for human consumption in the same clause and have clubbed them together and used the conjunction 'and' in so joining them, and yet there can be no question that each one of them is an excisable article faken by itself. Secondly, the framers of the Act seem to have thought that (i) appliances for distillation such as stills and (ii) materials for distillation, such as fermented wash, which in themselves could hardly be termed to be excisable articles properly so called, should be so termed as if by a legal fiction, and therefore, they were supposed to belong to the same category, and it seems to us that on some such considerations the legislature put them together in one and the same clause, and thus the two classes of articles fell to be joined together by the conjunction 'and'. But that, in our considered judgment, would not justify our holding that in order to amount to an excisable article within the meaning of this sub clause an offender must be found in possession of both the kinds of articles mentioned in this clause, together, and that the possession of any one of them without the other would be outside the mischief of this provision. Besides, as already discussed, the interpretation which has found favour with the learned Judge below would run completely counter to the provisions of sec. 16 (g) and sec. 54 (b) of the Act, and we have no doubt that such an interpretation would not and cannot be correct on any sound principles of interpretation of statutes. From the foregoing discussion, we are firmly of the opinion that the interpretation put by the learned Judge below on the provision of law in question is based on a rather superficial reading of it and can not be sustained on the principle of harmonious reading of all the relevant provisions of the Act and must be held to be erroneous. It thus turns out that the reasoning of the learned Judge, on which the order of acquittal is founded, is wrong and must be quashed. That being so, normally we should have sent the case back for a re-hearing of the appeal and decision of the other points involved in it. Learned counsel for the respondent strongly presses upon us, however, that there can be no reasonable chance of the conviction being maintained in this case on re-hearing because on the evidence brought on the record by the prosecution itself, it cannot possibly be held to have been established that the excisable articles in connection with which the accused was prosecuted, were recovered from his exclusive possession as these articles were found in an open place at a distance of about half a mile from the place where he was actually living at the relevant time. The learned Government Advocate has conceded before us that there is force in this contention, and, therefore, we think that no useful purpose would be served by our remanding this case for a fresh hearing of the appeal on the merits and, in these circumstances we content ourselves by laying down what the true interpretation of sec. 3(4)(iii) of the Act is and would not pass an order of remand. The result therefore must be that this appeal fails, and we hereby dismiss it, in the light or the observations made above.;