KALLU KHAN Vs. STATE OF M. P.

JUDGEMENT

(1.) THIS revision by the accused -applicant is directed against the judgment and order dated 7 -11 -77 passed by the Additional Sessions Judge, Rajgarh, in criminal appeal No 325 of 1975, arising out of the judgment and order dated 26 -9 -75 passed by the Judicial Magistrate first class, Biaora, in criminal case No. 475/74, convicting the applicant under section 34(a) of the M P. Excise Act, and sentencing him to undergo rigorous imprisonment for a period of one month and to pay a fine of Rs. 100 and in default of payment of fine to undergo further simple imprisonment for one month.

(2.) THE facts of the prosecution case may briefly be stated thus: On 31 -10 -75 Ramlal (PW 2) Excise Inspector received information that the applicant was in possession of illicit liquor. He, therefore, along with witnesses went to the house of the applicant. On search being taken of the applicant's house a tin containing about 12 bottles of illicit liquor was found. The material was seized vide seizure memo Ex. P -l. On examination of the seized liquid it was found to be illicit liquor. The applicant was, therefore, prosecuted under section 34(a) of the M. P. Excise Act (hereinafter referred to as 'the Act'). The applicant denied his guilt. After trial he has been convicted and sentenced as stated above. The appeal preferred by the applicant was unsuccessful and his conviction and sentence was maintained. The applicant has challenged his conviction and sentence in this revision.

(3.) AS regards the first point, section 34 of the Act provides for penalty for offences under the Act. It provides - whoever in contravention of this Act, or of any rule, notification or order made, issued or given there under, or of any licence, permit or pass granted under this Act, imports, exports, transports, manufactures, collects or possesses any intoxicant shall be punished. Section 16(1) of the Act provides that the State Government may, by notification, prescribe a limit of quantity for the possession of any intoxicant. Sub - section (4) of section 16 of the Act provides that notwithstanding anything contained in the foregoing sub -sections, the State Government may, by notification, prohibit the possession by any person or class of person's, either in the State or in any specified area, of any intoxicant either absolutely, or subject to such conditions as it may prescribe. The argument of the learned counsel was that since the notification on prescribing the limit of quantity for the possession of any intoxicant or absolutely prohibiting the possession by any person or class of persons of any intoxicant has not been produced, it cannot be said that any offence has been committed by the applicant. As this point was not raised in the Courts below the Deputy Government Advocate produced the notification in this Court. The notification bearing No. 54 -A/VSR dated 4 -7 -59 is issued by the Government of M. P. in the Separate Revenue Department and is published in M. P. Rajpatra dated 31 -7 -59 (part -I) page 1035. Under Clause VIII (b) of the said notification it is provided that - 'no person shall possess any intoxicant in any quantity which has not been lawfully manufactured or lawfully obtained'. Clause V (1) of the said Notification provides that the limit of quantity for the possession of any intoxicant, except foreign liquor, shall unless otherwise notified, be the limit prescribed under section 5 of the Act as the limit of retail sale for such article. The limit of retail sale under section 5 of the Act has been prescribed by the said notification under Clause III which is much less than the quantity seized from the applicant. In the circumstance there is no substance in the first point raised by the learned counsel for the applicant.