EMPEROR Vs. SALAMAT MARZBAN IRANI

JUDGEMENT

(1.) THIS is an appeal by the accused against their conviction under Section 43(1)(i) of the Bombay Abkari Act, 1878, the offence charged being that they sold without a licence a bottle of beer and, ai bottle of rum. At the trial the bogus customer went back! on his original statement, but I agree with the learned Magistrate that there was quite enough evidence to show that on the day in question the appellants did sell a bottle of beer and a bottle of rum, and, in my opinion, therefore, their conviction is justified.

(2.) BUT the learned Magistrate, in convicting the accused, passed an order for the confiscation of exhibits E and G, exhibit E being liquor which was found, on the police raiding the premises, in the kitchen adjacent to the place where the sale took place, and exhibit G being a very considerable amount of liquor found in a godown at the back of the accused's premises, and the principal question in this appeal is whether those exhibits are liable to confiscation. The section dealing with confiscation is Section 54 of the Bombay Abkari Act, which provides in Clause. (a) that whenever an offence under the Act has been committed, any intoxicant, hemp, mhowra flowers, materials, still, utensil, implement or apparatus in respect of which the offence has been committed, shall be liable to confiscation. Under that clause undoubtedly the bottle of beer and the bottle of rum in respect of which the offence was committed were liable to confiscation. The other articles, it is said, are liable to confiscation under Clause (b), which applies to any intoxicant, hemp or mhowra flowers lawfully imported, transported, manufactured, had in possession or sold along with, or in addition to, any article liable to confiscation under Clause (a). Before Clause (b) comes into operation, there must, therefore, be an offence committed under the Act, an article must be liable to confiscation under Clause (a), and that article must be dealt with in the manner specified along with, or in addition to, the other articles sought to be confiscated. It is alleged by the prosecution that exhibits E and G were had in possession along with articles liable to confiscation, namely the bottles sold.

(3.) THE appeal, therefore, will be dismissed, with this modification that the order for confiscation of exhibits E and G will be set aside, and those exhibits must be returned to the accused. N.J. Wadia, J.