KANHAI SAHU Vs. EMPEROR

JUDGEMENT

(1.) The petitioner in this case was convicted by a learned sub-deputy Magistrate under Section 47(a), Bihar and Orissa Excise Act, and sentenced to five months rigorous imprisonment. It appears that at first he pleaded not guilty but later pleaded guilty and was convicted and sentenced as stated above.

(2.) On appeal a learned Magistrate with appellate powers upheld the conviction but reduced the sentence to two months rigorous imprisonment. The petitioner has petitioned this Court in its revisional jurisdiction and now contends that he had committed no offence whatsoever under the said Act and prays that his conviction and sentence should be set aside and that he should be acquitted. The charge upon which the petitioner was tried was of being in unlawful possession of a bottle of country liquor at village Sultana, Hazaribagh district, contrary to the provisions of the Local Government Notification No. 1600-L.S.G., dated 26 March 1939. The facts are not in dispute, and it is common ground that village Sultana is within the area mentioned in the said notification. The terms of the notification are as follows: No. 1600-L.S.G.?In exercise of the powers conferred by Clause (4) of Section 19, Bihar and Orissa Act, 1915 (Bihar and Orissa Act 2 of 1915), the Governor of Bihar is pleased to prohibit with affect from 1 April 1939, the possession of country liquor, tari, pachwai, ganja and bhang in any quantity by any person at any place within the jurisdiction of the police stations of Hazaribagh, Ichak, Barkagaon, Mandu and Bamgarh in the district of Hazaribagh: Provided that bona fide travellers proceeding from one non-prohibited area to another and not halting within the aforesaid prohibited areas for more than 48 hours are exempted from the operation of this notification, so far as liquor and drugs intended for their personal use are concerned. Further provided that this notification will not operate against the possession of ganja and bhang by licensed wholesale dealers at the licensed warehouses under the control of an Excise Officer for transport to retail shops outside the prohibited areas. Provided also that this notification shall not debar the aboriginal tribes in the prohibited areas as named in Order No. XVI(1)(b) of Government notifications Nos. 14625-L.S.G., dated 19 December 1929, and 10514- L.S.G., dated 9 December 1932, under Section 94, Bihar and Orissa Excise Act, from possessing pachwai manufactured by them for their domestic use.

(3.) The possession by the petitioner of a bottle of country liquor in village Sultana was clearly contrary to the provisions of this notification, and if such notification is valid the petitioner was clearly guilty of an offence under Section 47 (a), Bihar and Orissa Excise Act, which is in these terms: If any person, in contravention of this Act, or of any rule, notification or order made, issued or given, or license, permit or pass granted under this Act: (a) imports, exports, transports, manufactures, possesses or sells any intoxicant...he shall be liable to imprisonment for a term which may extend to six months or to fine which may extend to one thousand rupees or to both....