EMPEROR Vs. MAHADEO

JUDGEMENT

(1.) WE have come to the conclusion that this appeal must succeed. It has been brought on a Question of principle, and we are bound to say that the Magistrate, no doubt doing his best to give the accused, as he said, a sort of vague benefit of the doubt, has misunderstood the legal position in a way which would be very serious for the administration of the law under this Act if it were correct. He discusses what would have been likely to have been found in the house of the accused if the accused had been carrying on illicit distillation of liquor. That was not the charge. He says that he also inspected the room and there was no evidence of distillation. That also was not the charge, and he, therefore, allowed his mind to be diverted by irrelevant considerations. He then comes to the conclusion, apparently with great hesitation and as an element of doubt, that the articles discovered in the room were kept there without the knowledge of the accused. That is quite irrelevant. He also holds, contrary to fact and law, that they were not in their possession. It, therefore, appears that the whole foundation of the judgment and the reasoning upon which it proceeded is destroyed, and we have to give an independent consideration to the case. The charge was of being in possession under Section 60(a) of an excisable article, and under Section 60(f) of implements for its manufacture. WE are of opinion that the charge under Section 60(f) is not sustainable. One may probably not be far wrong in inferring that the pipe which smelt of spirit and one end of which fitted the hole in the pot, was used, as Mr. J. M. Banerji for the respondents-properly described, as a sort of strainer. It would appear that the liquor was poured into the tin, and kept there for sale or for storing purposes. If Inspectors of the Department rely upon a charge under Section 60(f) relating to implements they must explain to the Court what the implement is, and for what purpose they suppose it is in the possession of the accused. They are experts in these matters and Magistrates and other tribunals are not supposed to be familiar with implements of distillation and require to be instructed in matters which are unconnected with their own work. Therefore that part of the charge must be dismissed. But the liquor was undoubtedly excisable liquor, and No. body knew it better than Mahadeo and Baldeo, because they had originally sold under a licence from Government, which appears to be, from what Mahadeo has told us, a very profitable business. The position is this The Inspectors made a. sudden raid in this village, and went, quite early on a September morning, to the premises of the accused, and searched; their house. The fact that they searched the house for nearly an hour is conclusive to our minds that they had no previous, information as to anything stored there or as to any excisable articles which had been deliberately planted on the accused to the knowledge of the Inspectors. They had suspicions, otherwise they would not have searched, and they were justified, as it turns out, in the suspicions which they had. Having unsuccessfully searched the house, they found a room adjoining. Now if that room had been cut off from the residence and could be truly described as quite separate and at a distance from the house, it might have raised an element of doubt in the case. But the room is really part of the structure, and connects with the house by a door. The door was, locked. The key was in the possession of Baldeo accused. To hold that the owner of the house, who was in possession of the key, did not know what was inside the room, in the absence of very strong evidence to the contrary, appears to us strange. At any rate on the production of the key, this liquor and strainer ware found inside. The Magistrate was wrong in holding that these were not in possession of the accused. They were, and that threw upon them the onus, by Section 71 of the Excise Act, of accounting satisfactorily for such possession. There is really no accounting. There is a vague suggestion of planting by a rival in trade, but it is to be observed that, so far as we know, the visit of the Inspectors that day to the village was a surprise, and it is difficult to believe that anybody even a rival in trade, would be so rash, as to put his head so to speak, in the lion's mouth, and go to the spot carrying 3 seers of liquor. The first question to be asked him would be how are you in possession of that liquor. WE think this suggestion is somewhat far-fetched. The other suggestion is that the dismissed servant, Dwarka had done it. It is difficult to reconcile this with the facts of the case Dwarka could not have known when the Inspectors would visit the village. The suggestion is that he must have placed it there to spite his master days before, but there 13 no reason why he should have done so as Dwarka's dismissal took place that very day. WE think it is one of those oases in which the accused, having originally held a licence and finding it profitable, thought they could put a little extra money into their pockets by the mean act of profiting themselves by robbing the public. If they want to carry on this business, they must procure a proper licence. On the other hand, they have already successfully defended themselves before the Magistrate, and we know that they must have incurred expenditure by being represented here. WE take that into account, and while convicting them of the offence under Section 60(a), we think the justice of the case will be met by inflicting a fine of Rs. 100. WE therefore, allow the appeal, convict both Mahadeo and Baldeo of possessing excisable articles under Section 60(a) of the Excise Act, and fine each of them the sum of Rs. 50. WE allow three weeks for payment. If the amount is not paid within that time, they must in default of payment, suffer three weeks simple imprisonment.