STATE Vs. GOVIND RAM

JUDGEMENT

(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."