EMPEROR Vs. SITA RAM

JUDGEMENT

(1.) This is a reference tinder Section 438, Criminal P.C., made by the learned Sessions Judge of Bareilly, and arises out of an application for revision, filed by Sita Ram in the Court of the Sessions Judge, against his conviction and the sentence of fine of Rs. 15 under Section 63, U.P. Excise Act.

(2.) The house of Sita Ram was searched by the Excise Inspector on 4 February 1936. An earthen pitcher of fermented wash, weighing about 15 seers, was recovered from the room of the accused. A bottle containing a quarter chitank of liquid, which was alleged to be illicit liquor, was also found. This has not how-ever been subjected to chemical test, and it is impossible to say that it was liquor. This fact should therefore be left out of account. The wash was found, on examination, to contain 12.8% of proof spirit. Sita Ram was prosecuted and convicted by a Magistrate for an offence under Section 63, Excise Act, and sentenced to a fine of Rs. 15, The plea of the accused that the earthen pitcher contained suger-cane juice, which was intended to be transformed into vinegar, was not accepted. Sita Ram applied to the Sessions Judge of Bareilly in revision.

(3.) The learned Sessions Judge has expressed the opinion that the accused cannot be held to be guilty under Section 63, which applies to cases in which the accused is found to be in possession of any quantity of excisable article, knowing the same to have been unlawfully imported, transported or manufactured or knowing the prescribed duty not to have been paid thereon. The learned Judge rightly points out that the mere fact that wash with an alcoholic content of 12.8% is found in the possession of a person falls short of the requirements of Section 63, because knowledge of the accused that the liquid had been "unlawfully imported, transported or manufactured" has not been proved by any evidence. The learned Judge then proceeds to consider whether Sita Ram was guilty of an offence under Section 60, which penalises possession of any excisable article or materials for the purpose of manufacturing any excisable article in contravention of the Act, or of any rule or order made under the Act, or of any licence, permit or pass obtained under the Act. He seems to have felt considerable difficulty in arriving at a definite conclusion, and concluded with the remark: My own view as a layman is however that mere possession of fermented wash cannot be proof of intention to use it for distillation and that the conviction of the present applicant is therefore unsustainable under any section of the Act.