EMPEROR Vs. DEORAO BHIVAJI

JUDGEMENT

(1.) In this case the accused was convicted by the First Class Magistrate of Sholapur under Section 43(7) (a) and (A) of the Bombay Abkari Act (Born. V of 1878). On appeal the learned Sessions Judge of Sholapur considered that the accused could not be convicted and sentenced under both the sub-sections as such a course would be contrary to the provisions of Section 71 of the Indian Penal Code, and he accordingly set aside the conviction under Section 43(1) (a) but upheld the conviction and the sentence under Section 43(J)(A). From that decision the Government of Bombay appealed.

(2.) In my opinion the view of the learned Sessions Judge is wrong. It seems to me clear from the wording of the Act that the two sub-sections create quite distinct offences. Sub-section (a) makes it an offence to import, export, transport or possess any excisable article or hemp ; and sub-s.(h) makes it an offence to use, keep or possess any materials, still, utensil, implement or apparatus whatsoever for the purpose of manufacturing any excisable article other than toddy. So that the one sub-section deals with the possession and dealing with an excisable article, and the other sub-section deals with the possession of material for manufacturing that article. It is, I think, plain that the offences dealt with by the two sub-sections are quite distinct. It does not necessarily follow that excisable articles in an accused's possession have been manufactured with his own material, but where that connection exists between the two offences, it may properly be taken into account in considering the sentence. In the present case the learned Magistrate sentenced the accused to a fine of Rs. 125 under each sub- section. We think that a fine of Rs. 125 is in substance a sufficient sentence in respect of the offences under the two sub-sections. We, therefore, propose to allow the appeal and to restore the conviction of the accused under Section 43(1) (a) but to impose a fine of Re. 1 only under that section.

(3.) The decision of this Court in Emperor V/s. Pandu (1927) 30 Bom. L.R. 378 which is in accordance with the opinion expressed above, was apparently not cited before the learned Sessions Judge. He seems to have relied on the decision in Emperor V/s. Ranio Bhikhlo (1902) 4 Bom. L.R. 720 and Queen-Empress V/s. Bhawa Sardar (1899) 1 Bom. L.R. 344, which, we think, must be treated as no longer expressing the law having regard to the repeal of the explanation to Section 35 of the Criminal Procedure Code on which the Courts in these cases relied, N.J. Wadia, J.