NARBHESINH GNANSINH v. STATE — 1985 DIGILAW 33 (GUJ)

J. P. DESAI, J. ( 1 ) THE learned advocate Mr. H. N. Jhala appearing for the petitioner (orig. accused) submitted that the offence under sec. 65 (a) of the Bombay Prohibition Act is punishable with imprisonment for a term which may extend to three years and also with fine and therefore the learned Chief Metropolitan Magistrate committed an error in trying the case summarily and that too as a summons case. He urged that the learned Chief Metropolitan Magistrate should have tried the case as a regular warrant case. He also urged that looking to the provisions of sec. 262 (2) of the Code read with sec. 116 of the Bombay Prohibition Act the learned Chief Metropolitan Magistrate could not have imposed a sentence of imprisonment for more than three months in the present case. These were the two main points urged by the learned advocate Mr. Jhala at the time of admission of this revision application. ( 2 ) AFTER I heard Mr. Jhala and fixed the matter for passing orders the learned advocate Mr. J. R. Dave who appeared for Mr. Jhala at that point of lime raised a contention as stated by me in the order passed on 30-1-1985 that there was no evidence on record to show that the accused had imported the liquor bottles into the State of Gujarat and therefore he could not have been convicted of the offence punishable under sec. 65 (a) of the Bombay Prohibition Act. I found some substance in this contention raised by Mr. Dave and therefore as stated in my order dated 30-1-1985 I admitted the petition for this limited question because I was inclined to dismiss the petition rejecting the other contentions raised by Mr. Zala. That is how the petition was ordered by me to be admitted on 30-1-1985 for hearing the learned advocate for the petitioner and the learned Additional Public Prosecutor on this limited question. I have heard the learned advocate Mr. Dave as well as the learned Additional Public Prosecutor Mr. M. C. Patel so far as this limited question is concerned. Before going to the discussion of that question I first propose to deal with and dispose of the submissions which were made by Mr. Zala which I am inclined to reject. ( 3 ) SEC. Dave as well as the learned Additional Public Prosecutor Mr. M. C. Patel so far as this limited question is concerned. Before going to the discussion of that question I first propose to deal with and dispose of the submissions which were made by Mr. Zala which I am inclined to reject. ( 3 ) SEC. 116 of the Bombay Prohibition Act reads as follows:-"in all trials for offences under this Act the Magistrate shall follow the procedure prescribed in the Code of Criminal Procedure 1898 for the trial of summary cases in which an appeal lies". THE Code of Criminal Procedure 1898 was repealed and the Code of Criminal Procedure 1973 came into force with effect from 1-4-1974. Hence after the coming into force of this Code we have to read 1973 in place of 1898 in section 116 of the Bombay Prohibition Act. While section 260 of the code of Criminal Procedure provides that only a Chief Judicial Magistrate or Metropolitan Magistrate or a Judicial Magistrate First Class specially empowered by the High Court in this behalf can follow the procedure laid down in Chapter XXI and that too for trial of only those offences which are enumerated in sec. 260 to 260 (1) (ix) no such limitations are imposed while enacting secs. 116 of the Bombay Prohibition Act. It is permissible for a Magistrate to try any of the offences enumerated in sec. 260 (1) (i) to 260 (1) (ix) in a regular way it the nature of the case so demands but it is not permissible for a Magistrate to try an offence punishable under the Prohibition Act in a regular manner as no such provision is made in the Prohibition Act. Hence no such option is left with the Magistrate to try an offence under the Prohibition Act; in a regular way. Sec. 262 (1) of the Code of Criminal Procedure 1973 says that in trials under the Chapter which deals with Summary Trials the procedure specified in the Code for the trial of summons case shall be followed while in the Code of Criminal Procedure 1898 the provision in this regard is somewhat different and it was provided in the old Code in sec. 262 (1) that in trial under the Chapter dealing with Summary Trials the procedure prescribed for summons cases shall be followed in summons cases and the procedure prescribed for warrant cases shall be followed in warrant cases. A distinction was thus made between a summons case and a warrant case case far as summary trials are concerned in the Code of Criminal Procedure 1898 while that distinction has been done way with while enacting sec. 262 (1) in the Code of Criminal Procedure 1973 In view of this. there is no substance whatsoever in the submission of Mr. Zala that the learned Chief Metropolitan Magistrate committed error in following the procedure prescribed for a summary trial land in following the procedure prescribed for trial of a summons case. ( 4 ) THE learned advocate Mr. Zala drew my attention to a decision of the Bombay High Court reported in State of Bombay v. Govind Masu A. I. R. 1951 Bombay 332 and another decision of the Bombay High Court reported in Bandulal Balaprasad v. State A. I. R. 1962 Bombay 258 in support of his submission that the case should have been tried as a warrant case and not as a summons case and that it is not an regularity curable under sec. 460 of the Code (sec. 537 of the old Code ). There cannot be any dispute with the proposition that if a warrant case is tried as a summons case the trial is vitiated and it is not an irregularity which can be cured. The two decisions of the Bombay High Court rendered prior to 1-5-1960 are binding tot this Curt but they are not applicable in the present case because they pertained to the trials prior to the coming into force of the Code of Criminal Procedure 1973 As discussed by me a little earlier the difference between a summons case and a warrant case so far as summary trials are concerned is done away with while enacting sec. 262 (1) of the Code of Criminal Procedure 1973 and that way In a summary trial even under the Code of Criminal Procedure the procedure for trial of a summons case is to be followed irrespective of the fact whether the case is few summons case or a warrant case. In view of this I do not find any substance in this submission of Mr. Zala. In view of this I do not find any substance in this submission of Mr. Zala. ( 5 ) SO far as the second contention of Mr. Zala that the learned Chief Metropolitan Magistrate could not have imposed a sentence of more than three months as the accused was tried summarily is concerned there does not appear to be any substance whatsoever. Sub-sec. (2) of sec. 262 of the Code of Cri- minal Procedure. 1973 is in Chapter XXI of the Code. It provides that no sentence of imprisonment for a term exceeding three months shall be passed ill the case of any conviction under this Chapter. The words any conviction under this Chapter in sub-sec. (2) of sec. 262 show that this sub-sec. applies only in these cases which are tried summarily by reason of the provisions contained in then Chapter. i. e. in the case of conviction for any of the offences specified in secs. 260 and 261 of the Code. The question of sentence is not a matter of procedure. A provision in a statute prescribing a sentence for any act imposes a liability or a penalty for that act and is therefore a substantive provision of law and not one dealing with a matter of procedure. Sec. 116 of the Bombay Prohibition Act prescribes the procedure for the trial of cases arising under the Prohibition Act. Sub-sec. (2) of sec. 262 will therefore not apply in such cases. Sec. 65 of the Bombay Prohibition Act and some other sections of the said Act prescribe minimum sentences of imprisonment exceeding three months in respect of several offences. If it is accepted that the provisions of sub-sec. (2) of sec. 262 of the Code are applicable even when an accused is convicted of San offence under the Prohibition Act then a Magistrate will not be in a position to impose even minimum sentence where the minimum sentence prescribed is more than three months imprisonment. The provisions of the Code of Criminal Procedure enable a Magistrate to try a case in the ordinary manner if he feels that it is one in which a sentence exceeding three months should be imposed. but that provision cannot he resorted to by a Magistrate trying cases under the Prohibition Act because under sec. 116. all such cases are tot be tried in a summary way. but that provision cannot he resorted to by a Magistrate trying cases under the Prohibition Act because under sec. 116. all such cases are tot be tried in a summary way. The provisions of the Act prescribing minimum sentences exceeding three months will therefore be rendered nugatory it the argument that sub-sec. (2) of sec. 262 applies in such cases is accepted. In view of this I am inclined to say that only the procedure prescribed by the provisions laid down in Chapter XXI of the Code is to be followed in the trial of offences under the Prohibition Act but the provisions of sub-sec. (2) of sec. 269 do not apply to convictions for offences under the prohibition Act I am fortified in this view of mine by a decision of the Bombay High Court reported in Emperor v. Narji Bhaji Bhil 52 Bombay Law Reporter 321. The relevant discussion on this point will be found in the last para at page 323 of the report which paragraph is carried forward on the next page. This submission of Mr. Zala is also therefore. without any substance and deserves to be rejected. ( 6 ) IT was contended before the learned Chief Metropolitan Magistrate that the evidence of the complainant shows that the bottles were sealed by him in the presence of the panchas while the bottles were in fact not sealed. The learned Chief Metropolitan Magistrate has observed in this regard that the bottles were in sealed condition and therefore they were not required to be sealed again and that it appeared that the complainant made a mistake in stating in his deposition that the bottles were sealed by him in the presence of the panchas. Neither the Panchnama nor the evidence of the panch shows that the bottles were sealed at the time of making the Panchnama. However to leave no room for any doubt the muddamal bottles were called for from the trial Court and were seen by us in open Court and Mr. Jhala also on seeing the bottles conceded that the bottles were in sealed condition and bore the seals of the manufacturers and that they did not appear to have been sealed again by the police as stated by the in the order passed on 30-1-1985. Jhala also on seeing the bottles conceded that the bottles were in sealed condition and bore the seals of the manufacturers and that they did not appear to have been sealed again by the police as stated by the in the order passed on 30-1-1985. In view of this it is clear that the bottles which were found in sealed condition in possession of the accused were seized by the police officer in the presence of the panchas and that they were not sealed again. As these bottles bore the seals of the manufacturers and also labels of the manufacturers the learned Chief Metropolitan Magistrate raised a presumption under sec. 11613 of the Bombay Prohibition Act that the accused was in possession of liquor. The labels which are found on the sealed bottles indicate that live lout of the thirteen bottles were of whisky six were of brandy one was of Goan Cashew liquor and one bottle was of country liquor by name Rocket. The learned Chief Metropolitan Magistrate raised a presumption with regard to five bottles of whisky four were manufactured by Pravar Distilleries of Pravar Nagar Maharashtra and one bore the label of whisky. the manufacturer thereof being shown from Karnataka. Out of the six bottles of brandy live were manufactured by Pravar Distilleries and bore the name `royal Sealet while the one manufactured by the same manufacturer bore the name Brehans Doctor Brand. It is thus clear as observed by the learned Chief Metropolitan Magistrate as well as by the learned City Sessions Judge that all the conditions necessary for raising a presumption under sec. 116-B of the Bombay Prohibition Act were satisfied in the present case and no error was committed either by the learned Chief Metropolitan Magistrate or the learned City Sessions Judge in raising a presumption under sec. 116-B of the said Act that what was found from the possession of the accused was liquor. ( 7 ) SO far as the contention of Mr. Dave appearing for Mr. Zala that the accused could not have been convicted for the offence punishable under sec. 65 of the Bombay Prohibition Act is concerned I am inclined to accept the same because sec. 65 (a) of the Act penalises a person who imports or exports any intoxicant. ( 7 ) SO far as the contention of Mr. Dave appearing for Mr. Zala that the accused could not have been convicted for the offence punishable under sec. 65 of the Bombay Prohibition Act is concerned I am inclined to accept the same because sec. 65 (a) of the Act penalises a person who imports or exports any intoxicant. Here the allegation is that the accused imported the liquor bottles into the State of Gujarat from the State of Maharashtra. There is not an iota of evidence on record to show that the accused himself imported the liquor bottles. The only fact which is established is that the liquor was manufactured in Maharashtra and the accused who ordinarily resides at Bombay was found in possession of these bottles within the State of Gujarat at Ahmedabad. There is even no evidence to show that the accused arrived from Bombay by any train along with the liquor bottles. A very strong suspicion may arise in our mind that the accused must have imported liquor bottles when he was found in possession of the same at the railway station at Ahmedabad and when he resides at Bombay and carne out with a total denial with regard to the possession of the liquor bottles. But that suspicion cannot take the place of proof. The learned advocate Mr. Dave drew my attention to a decision of the Supreme Court reported in Bhagwanbhai Dulabhai Jadhav v. the State of Maharashtra 1963 Maharashtra Law Journal 134. In that case it appears that the accused were residents of former Portuguese territory and were found to be in possession of foreign liquor at a place in Thana District. There was no other evidence to show that the liquor was imported by the accused. The accused were acquitted by the learned Magistrate but the acquittal was reversed by the high Court. The matter was carried before the Supreme Court by the accused and the Supreme Court held that the mere fact that liquor was foreign and the accused were residents of former Portuguese territory does not justify conviction under sec. 65 (a) of the Act. This decision of the Supreme Court is on all fours so far as the present case is concerned. The learned Additional Public Prosecutor Mr. 65 (a) of the Act. This decision of the Supreme Court is on all fours so far as the present case is concerned. The learned Additional Public Prosecutor Mr. M. C Patel in view of this decision of the Supreme Court was unable to satisfy me that the conviction for the offence punishable under sec. 65 (a) of the Bombay Prohibition Act is justifiable in the present case. In view of this the revision application is required to be partly allowed and the conviction and sequence recorded for the offence punishable under sec. 65 of the Bombay Prohibition Act are required to be set aside. Application partly allowed: Conviction set aside. .