EMPEROR Vs. SORAB KHUDARAM IRANI

JUDGEMENT

(1.) THIS is an appeal from an order of conviction and sentence passed by the Presidency Magistrate, Sixth Court, Bombay. He convicted the accused under Section 18 read with Section 7 of the Hoarding and Profiteering Ordinance and sentenced him to a fine of Rs. 10,000, in default rigorous imprisonment for one year.

(2.) THE facts which are not in dispute are that the accused was found in possession of 165 cases of foreign liquor on March 13, 1946, and the case for the prosecution was that under Section 7 of the Ordinance XXXV of 1943 that quantity was more than necessary for the reasonable needs of the accused and his family for a period of three months.

(3.) THE Abkari Act does deal, among other things, with possession of liquor and intoxicating drugs, and under Section 17 the Provincial Government may by notification in the Official Gazette determine a limit of quantity Within which and beyond which the sale of any intoxicant or hemp shall be deemed to be sale by retail and wholesale respectively. This limit of retail sale is important because it affects the right of the, subject to possess hemp or intoxicants and that is regulated by Section 14b and the limit of possession laid down of intoxicants or hemp is the same as the limit of retail sale provided for ins. 17. THErefore, as the law stood on the day the Ordinance: came into force, viz. , October 16, 1943, the question of possession of liquor including foreign liquor was regulated by Section 14b of the Abkari Act. Under Section 17 the Government had issued a notification on July 10, 1941, providing for limit of retail sale with regard to various intoxicants, and it is to be noted that they did not provide any limit with regard to retail sale as far as foreign liquor was concerned. THErefore, the position was when the offence is alleged to have been committed, namely, on March 13, 1946, that under the Abkari Act it was open to the accused to possess foreign liquor to an unlimited extent. THE Ordinance of 1943 deals with hoarding and profiteering and undoubtedly its object is to restrict and curtail the rights of the subject to possess any particular article or commodity to an unlimited extent. To the extent that it derogates from the rights of a subject the subject can have no grievance, because that is the whole object of the Ordinance. Under Section 7 it is left to the Controller General to apply that section to such articles as he may think proper, and by a notification he has chosen to include in the articles foreign liquor. THE question, therefore, is whether apart from derogating from the right of the subject to possess foreign liquor to an unlimited extent, the Ordinance also derogates from any other law which deals with possession of foreign liquor. Under Section 17 the Ordinance may add to any other law in the sense that where the law is silent with regard to any particular provision relating to any particular article it may deal with that subject matter. But it cannot derogate from such law dealing with a particular article which has been made the subject matter of the Ordinance. In our opinion it is the Abkari Act which as a special law deals with the question of possession of liquors and intoxicants including foreign liquor, and as the law stood the subject had the right to possess foreign liquor to an unlimited extent. THErefore any restriction or curtailment of that right to possess given by the special law would undoubtedly be in derogation of that special law.