JHAMMAT Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This is an application under section 482 Cr. P. C. which has arisen in the following circumstances :

(2.) Jhammat Mai petitioner booked 12 drums of thinner by passenger train from Bombay to Abu Road on 12th May, 1974. He took delivery of five drums and was taking them to his residence on 22nd May, 1974. The drums were intercepted by the police constable as there was a general Complaint against the petitioner that he imported liquor in the name of thinner, or prepared liquor out of thinner. The police constables were obstructed by the sons and relatives of the petitioner. A case was registered and 7 more drums of the material were seized by the police from the Railway godown on 14th July, 1974. After investigation the police submitted a challan on 22-7-74 against the petitioner and six others, under sections 30, 65 (a), 66 (b), 83 and 90 of the Bombay Prohibition Act, 1949 (hereinafter called 'the Act') and under sections 147, 327, 273, 285, 341 and 186 Penal Code even though by then the chemical report was not received.

(3.) Before the challan was presented in the court the petitioner made applications on 10-6-74 and 14-6-74 to the magistrate for release of the drums as thinner was a spirituous preparation for the possession of which no licence was needed under the Act. The petitioner mainly relied upon a letter of the District Excise Officer of 26th July, 1976, written to one Amrit Lal that section 59C and 59D relating to control and regulation of denatured spirituous preparation had no application as these sections were introduced by amendment in the year 1960 which was not applicable to the Abu area. The learned Magistrate rejected this application by his order dated 15-6-74. He held that the petitioner had committed violation of section 30 of the Act, as it stood before it was repealed in 1960 and the rules 10,11, 12, 15, 18 and 20 made under Bombay Abkari Act, 1878 which still continued to apply to Abu area. The petitioner had also filed a writ petition against the seizure of the drums in this court on 22-6-74 vide S. B. Civil Writ Petition No. 1501/74. One of the main grounds in the writ petition was that the petitioner had imported liquor in the year 1966 as well and he was prosecuted for the same. He was, however, acquitted by the Magistrate Abu Road by his Judgment dated 23-2-1970. Along with that writ petition a stay application was also made in which this Court made an order on 20-8-74 that the articles be returned to the petitioner on his furnishing adequate security to the satisfaction of the Munsiff and Judicial Magistrate First Class, Abu Road in respect of the price of such goods. However this order shall be subject to the final order that may be passed by the learned Judicial Magistrate, Abu Road in criminal proceedings against the petitioner under the Bombay Prohibition Act. In pursuance of this order the learned Magistrate directed on 20-8-74 that the seized articles may be returned to the petitioner provided he furnished a bank guarantee for Rs. 7,663-20 paise.