EMPEROR Vs. APPA RAMA MALI

JUDGEMENT

(1.) The applicant in this case one Appa Rama Mali, has been convicted by the First Class Magistrate, Malshiras, under Section 43(1)(a) and (h) of the Abkari Act, V of 1878, and sentenced to rigorous imprisonment for four months and a fine of Rs. 50. The conviction and sentence have been confirmed in appeal by the Sessions Judge of Sholapur.

(2.) The facts found by the lower Courts, which, according to our usual practice, we shall assume to be correct for the purposes of this revision application, are briefly these. The accused lives jointly with his two brothers in a vasti, that is a clump of huts, in the neighbourhood of the village of Borgaon. There are three huts. The middle one is occupied by the accused with his family, the two adjoining huts by his two brothers and their families. At the back of the huts there are some fields jointly cultivated by the brothers in which various crops are grown. For about two years past the Excise Inspector of the Pandharpur Range, who is the complainant, has had information that people of Borgaon including the accused were in the habit of preparing illicit liquor and selling it in the neighbouring villages. Several raids had been made without success, but on February 17, 1933, definite information was obtained that the accused was preparing liquor from jaggery for the Shimga holidays. Accordingly the Inspector with his staff proceeded first of all to the village of Mahalung, where there is a Criminal Tribes Settlement, and at day-break on February 20 he proceeded to the huts occupied by the accused and his brothers. Two panchas were taken from the settlement and two residents of Borgaon were called after arrival at the vasti, and in their presence a search was made of the premises. In the first room occupied by one of the accused's brothers was found an empty kerosene tin smelling of liquor. In the middle room, which is the one occupied by the accused himself, two empty bottles were found which, according to the evidence of all the witnesses except one panch, were also smelling of liquor. In the third room two bottles containing a very small quantity of liquor were found. In a crop of barley behind the huts the search party found a kerosene tin full of jaggery wash and in a crop of maize another kerosene tin full of jaggery wash and three bottles containing illicit liquor. Also by the side of a well, which is close to the huts, they found a bundle of hivra bark. A panchanama was made of these various things and the accused was sent up for trial.

(3.) The learned counsel who appears for the applicant in this case has argued four points, viz., (1) that the burden of proof has been wrongly thrown on the accused, (2) that possession of the excisable articles has not been proved within the meaning of Section 43(1)(a) and (h) of the Act, (3) that the search was not made in accordance with Section 38 of the Abkari Act and Section 103 of the Criminal Procedure Code, and (4) that the sentence on the accused is under the circumstances excessive.