Vijendrajit Ayodhya Prasad Goel vs State Of Bombay

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Not extracted

Decision Date: 13 March, 1953

Coram: Mahajan

In this case the Court recorded that the appellant, together with another accused named Kishenchand, had been charged under Section 66(b) read with Section 81 of the Bombay Prohibition Act, 25 of 1949. The charge alleged that on 8 June 1950 the two accused were found in possession of twenty gallons and eight drums of rectified spirit without a permit, which the statute required. The defence contended that the articles of spirit were neither in the possession of the appellant nor in the godown that was under his charge. The Presidency Magistrate held that it had been proved beyond reasonable doubt that the bottles, drums and jars containing the rectified spirit had been discovered in the godown that the police had raided. Because the appellant admittedly was in charge of that godown, the Magistrate inferred that he was in control of and possessed the articles found therein. Accordingly, the appellant was convicted, sentenced to three months’ rigorous imprisonment and ordered to pay a fine of Rs 1,000. The appellant appealed to the High Court, but the High Court dismissed the appeal summarily. The present appeal came before this Court by way of special leave.

The principal issue raised on this appeal was that there was no evidence sufficient to establish that the appellant was found in possession of the twenty gallons and eight drums of rectified spirit on 8 June 1950. It was argued that the Magistrate was not justified in relying on the statement made by the accused under Section 342 of the Criminal Procedure Code to reach that finding. The argument further asserted that the godown was owned by a limited company, Prank Ross & Co., Ltd., and that the appellant was merely paying rent for the premises under the company's instructions. In the absence of any proof that the appellant ever entered the godown or participated in the business carried on there, the argument claimed that the rectified spirit recovered from the godown could not be said to have been in his possession. This contention might have been persuasive if the conviction had rested solely on the accused’s statement recorded under Section 342, CrPC, because such a statement alone could not be treated as substantive evidence. However, the Court noted that the conviction was not based only on that statement.

Evidence was later led by the prosecution. The first prosecution witness, Pitalwalla, gave testimony that the godown from which the rectified spirit was recovered was in the possession of the appellant. This witness was not cross-examined on that point. A second prosecution witness also described the premises as the appellant’s godown and was likewise not questioned on that issue. The Court observed that, had the defence denied that the godown was in the appellant’s possession and charge, further evidence would have been required, and the prosecution possessed rent receipts signed by the appellant to support its case. Because the appellant had admitted that he was in charge of the godown, no additional evidence on that point was led.

Because the appellant had admitted that he was in charge of the godown, the prosecution did not call any additional evidence to prove that fact, and consequently no further evidence was led on the question of the appellant’s control of the premises. In that situation the Magistrate was fully justified in relying on the statement made by the accused under Section 342 of the Criminal Procedure Code to support the prosecution’s case that the appellant possessed the godown. The allegation that the Magistrate had selectively used only the incriminating portion of the statement while ignoring any exculpatory portion is inaccurate. The statement recorded under Section 342 did not contain two separate parts, one incriminating and the other exculpatory; rather it addressed two distinct facts. The accused admitted that he was in charge of the godown, but he denied that the rectified spirit was found inside that godown and claimed that the spirit had been discovered outside it. The prosecution’s evidence proved that the part of the statement denying the presence of the spirit in the godown was false and showed that it bore no direct connection with the portion of the statement concerning the appellant’s possession of the premises.

Mr. Umrigar then argued that even if the appellant possessed the godown, that circumstance alone did not permit a necessary inference that the rectified spirit recovered from the godown was also in the appellant’s possession or that he had knowledge of it. He pointed out that the prosecution had not suggested that the godown was open to anyone at will. In fact, a servant employed by the appellant was found inside the godown actually filling bottles with the rectified spirit. The raid uncovered as many as one hundred eight bottles and two drums of rectified spirit together with various other articles. The defence suggested that these items might have been planted by the police, but it did not assert that the godown’s accessibility to several other persons could explain the presence of the spirit. The claim that the police placed the articles in the godown could not be sustained in light of the evidence. Accordingly, the Presidency Magistrate was justified in drawing the inference that the articles were in the appellant’s possession because the appellant possessed the godown, especially after the defence’s allegation that the articles had been found outside the godown was rejected. Nevertheless, this Court held that it would not be appropriate to disturb the lower courts’ decision on the basis of a special leave petition merely because an alternative inference might also be drawn from the facts.

Mr. Umrigar further contended that only one bottle among the seized articles had been sent for chemical analysis and that the prosecution had not demonstrated that all the recovered bottles and drums contained rectified spirit. He suggested that the remaining containers might have held phenyle, the manufacture of which the appellant’s company admittedly conducted in that godown. The Court found that this argument could not be given serious consideration. It was unnecessary to send every bottle recovered by the police, in the presence of the police, for analysis when all the bottles contained the same substance. Consequently, the argument was rejected.

The next contention raised was that no permit was required for possession of rectified spirit.

The argument that possession of rectified spirit was permissible because it belonged to the category of medical preparations was rejected as unfounded. No evidence was introduced to demonstrate that the spirit in question could be classified as a medical preparation. By contrast, the statute expressly includes rectified spirit within the definition of an intoxicant, and possession of such a substance without a permit is prohibited by the provisions of Section 66(b) of the Act. Section (22) of the Act defines an “intoxicant” as encompassing liquor, and Sub-section (24) further defines liquor to include spirits of wine, methylated spirit, wine, beer, toddy and all liquids consisting of alcohol. The chemical analyst’s report showed that the rectified spirit recovered from the appellant’s possession contained ninety-four per cent volume of ethyl alcohol. Consequently, the substance clearly falls within the meaning of “intoxicant” as provided in Section 2(22) of the Act. The contention that the spirit was a medical preparation was therefore repelled. On the basis of these findings, the Court concluded that there were no grounds to sustain the appeal and consequently dismissed it.