STATE OF MAHARASHTRA Vs. KAPURCHAND ADEBHAN OSWAL

JUDGEMENT

(1.) THESE are acquittal appeals by the State and they raise a point of law. The point of law raised is whether in a case where a person is prosecuted under Section 67 of the Bombay Prohibition Act for being found in possession of any spirit which has been altered or attempted to be altered, it shall be presumed under Section 103 of the Act, without further evidence until the contrary is proved, that the possession is in contravention of Section 21 of the Act, i. e. that the person in possession has knowledge or has reason to believe that the alteration or attempt at alteration has been made with the intention that such spirit may be used for human consumption and that, therefore, he has committed an offence under Section 67. The learned Judge and Magistrate has held that such a presumption is enjoined by Sub-section (2) of Section 103, but that the presumption is a rebuttable one and has been rebutted in this case by the proved circumstances of the cases. The learned Magistrate thought that the proved circumstances of the cases were that all the bottles were packed, sealed and labelled and that the labels purported to show that the contents of the bottles were French Polish. The learned Magistrate thought that, in view of these circumstances, the respondents could not have known or could not have had reason to believe that the bottles contained denatured spirit which was altered by dilution with water. Accordingly, the learned Magistrate ordered the acquittal of the respondents and the State, feeling aggrieved by that order, has filed these appeals. In our view, a presumption about the commission of an offence under Section 67 for contravention of Clause (b) of Section 21 is not permissible upon the language of Sub-section (2) of Section 103. Therefore, where the charge is that the accused has in his possession any denatured spirit in con-travention of Clause (b) of Section 21 and that, therefore, he has committed an offence under Section 67, the prosecution must prove that charge independently of the presumption under Section 103, Sub-section (2), which would not be available to it.

(2.) THE above point of law has arisen in this way. In Criminal Cases Nos. 89, 90 and 91 from which Criminal Appeals Nos. 1448, 1449 and 1450 of 1956 have arisen, the three shops of the merchants of the Khopoli village were raided and the raid led to the discovery of 260 bottles in one case, 63 bottles in the other case and 143 bottles in the third case. All these bottles were labelled "french Polish". In Criminal Case No. 99, the shop of the merchant of Chowk was raided and 10 bottles labelled "french Polish" were discovered as result of the raid. Out of the bottles seized in Criminal Case No. 89, two samples were sent to the Chemical Analyser and the examination of these samples revealed the absence of solids in, both the samples. In one sample the percentage of alcohol was 81 and in the other sample it was 78. The rest was water in both the samples. In other words, the examination of the substance by the Chemical Analyser showed that it was denatured spirit which was altered by dilution with water. Out of the bottles, seized in Criminal Case No. 90, four samples were sent to the Chemical Analyser and the examination of those samples also showed the absence of solids therein. In these samples the percentage of alcohol was 84, 80, 78 and 79 respectively and the rest was water in all the samples. Thus, that substance also was denatured spirit which was altered by dilution with water. Out o? the bottles seized in Criminal Case No. 91, two samples were sent to the Chemical Analyser and the examination of these samples showed the presence of 0. 6 per cent solids in one sample and 0. 5 per cent solids in the other samples. Both the samples contained rosin. In one of these samples the percentage of alcohol was 76 and in the other sample it was 74. The rest was water in both the samples. Out of the bottles seized in Criminal Case No- 99, four samples were sent to the Chemical Analyser and the examination thereof showed the absence of solids therein. In these samples the percentage of alcohol was 76, 79, 81 and 79 respectively and the rest was water in all the samples. It is thus clear that in all the samples which were sent to the Chemical Analyser in the above mentioned cases, the denatured spirit was found altered by dilution with water. There is no doubt, therefore, that the bottles containing altered denatured spirit were found in possession of the respondents when their shops were raided, and the question is whe ther knowledge, or the existence of reason to believe, that the alteration was made with the intention that such denatured spirit may be used for human consumption shall be presumed under B. 103 against the respondents or must be proved.

(3.) NOW, it is clear that the provisions of Sub-section (1) of Section 103 will not be attracted in this case. The provisions of Sub-section (1) are general and they relate to the presumption to be drawn "in prosecutions under any of the provisions" of the Act. It is true that the expression "any of the provisions of this Act" would prima facie include the provisions of Section 67 or S- 67-1a; but then the Legislature has specially enacted Sub-section (2) dealing expressly with prosecutions under Section 67 or Section 67-1a. Where there is a special provision made by the Legislature in the matter of a presumption to be drawn in particular prosecutions, the drawing of presumption in those prosecutions shall be regulated by the special provision and not, by the general provision. Moreover, it is clear from the language of Sub-section (1) of Section 103 that the presumption contemplated by the Legislature in enacting Sub-section (1) relates to an offence in respect of the manufacture of an intoxicant and not an offence arising out of a contravention of Section 21 of the Act. This is evident from the words "an offence under this Act in respect of any intoxicant, hemp, mhowra flowers or molasses or any still, utensil, implement or apparatus, whatsoever for the manufacture of any intoxicant as are ordinarily used in the manufacture of such intoxicant" in Sub-section (1 ). Substances such as hemp, mhowra flowers and molasses are used for the manufacture of an intoxicant. The use of a comma by the Legislature after the words 'intoxicant' 'hemp', 'still', 'utensil' and 'apparatus' would also show that these words arc to be read with the words "whatsoever for the manufacture of any intoxicant. " It is obvious, therefore, in our view, that the presumption envisaged by Sub-section (1) of Section 103 is the presumption about an offence relating to the manufacture of an intoxicant, and not in respect of an offence arising out of contravention of Section 21 of the Act.