Maharaj Prithvisinghji Bhimsinghji vs State Of Bombay (Now Rajasthan) on 9 December, 1959

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 9 December, 1959

Coram: S.J. Imam, J.L. Kapur, K.N. Wanchoo

In the matter titled Maharaj Prithvisinghji Bhimsinghji versus State of Bombay (now Rajasthan), decided on 9 December 1959, the Supreme Court of India recorded the case details. The judgment was authored by Justice S J Imam and the bench comprised Justices S J Imam, J L Kapur and K N Wanchoo. The appellant, Maharaj Prithvisinghji Bhimsinghji, was prosecuted before a First-Class Magistrate at Abu Road for violations of Sections 65(a) and 66(b) of the Bombay Prohibition Act, 1949. His servant, identified as Gangaram Makarji and designated as accused No 2, faced the same statutory charges alongside him. A third individual, the driver of the jeep that was used to transport the appellant’s luggage, was initially named as an accused; however, the Magistrate did not formulate any charge against this driver and consequently discharged him from the proceedings. The Magistrate imposed a sentence of six months’ simple imprisonment and a fine of Rs 500 on the appellant under Section 65(a), and an additional sentence of three months’ simple imprisonment with a further fine of Rs 500 under Section 66(b). Both terms of imprisonment were ordered to run concurrently. In respect of the servant, the Magistrate sentenced him to one month’s simple imprisonment and a fine of Rs 100 for the offence under Section 65(a), and to fifteen days’ simple imprisonment together with a fine of Rs 100 for the offence under Section 66(b), also directing the custodial terms to run concurrently.

Following the conviction, the appellant appealed to the Sessions Judge of Mehsana. The appeal was heard by an Additional Sessions Judge, who set aside both the conviction and the sentence, thereby granting an acquittal to the appellant. The State of Bombay challenged this acquittal by filing an appeal before the Bombay High Court. The High Court allowed the State’s appeal, reversed the acquittal, reconvicted the appellant under the same provisions—Sections 65(a) and 66(b)—and reinstated the original orders of conviction and sentence issued by the Magistrate. The appellant subsequently obtained special leave to appeal the High Court’s judgment to this Court. The factual matrix presented to the Court showed that the appellant and his servant, Gangaram Makarji, travelled from Delhi to Abu Road aboard the 201 UP train, which arrived at Abu Road at 3 minutes 45 seconds p.m. on 1 February 1954. The appellant occupied a first-class compartment, while his servant travelled in a servants’ compartment. Upon reaching Abu Road station, the appellant disembarked and his servant retrieved their luggage, accompanying his master to the first-class waiting room. After a short interval, the appellant’s luggage was transferred into the trailer of a jeep, the driver of which was the previously discharged accused No 3. When the appellant later entered the jeep and it was prepared to depart, the Jamedar, identified as Shri Sheikh, halted the vehicle to conduct a search in connection with a suspected offence. The appellant directed his servant, Gangaram Makarji, to produce the keys to the luggage. The luggage was then searched, and the search uncovered seventy-six bottles of foreign liquor concealed in the trunks that belonged to the accused, together with two half-consumed bottles, one of which was placed inside an attache case.

During the search authorities discovered several half-consumed bottles of foreign liquor, one of which was contained in an attache case. Consequently, the appellant, his servant identified as Gangaram Makarji, and the driver of the jeep were arrested by the police. Based on these facts, the prosecution alleged that the appellant had committed offences under Sections 65(a) and 66(b) of the Act. The appellant acknowledged ownership of the luggage but maintained that he was unaware of any bottles of liquor concealed in his trunks or in the attache case, sometimes described as a suitcase. He asserted that his servant Gangaram Makarji exclusively handled the packing and unpacking of his trunks, and that he himself had no involvement in that process. The appellant further explained that a person of his social standing and upbringing customarily refrained from personally attending to such matters, leaving all luggage handling to his servant. According to his description, the servant also assisted him in dressing and undressing, accompanied him everywhere, and retained at all times the keys to the appellant’s boxes as well as his money. In paragraph five of his written statement, the appellant expressed his belief that the servant must have introduced the bottles for some purpose without his knowledge or consent. He added that, had he known of the liquor, he would never have allowed his servant to commit such a foolish act. The servant Gangaram Makarji offered a defence that he had purchased the liquor on behalf of a man named Punmaji Devaji, who had given him one thousand rupees to obtain the bottles. According to this defence, the liquor was to be delivered to Punmaji Devaji at Sirohi Road Station in the State of Rajasthan, an area outside the jurisdiction of the Act. Gangaram claimed that, upon reaching Sirohi Road Station, he entered the compartment where the appellant was sleeping, intending to retrieve the bottles from the trunks and hand them over to Punmaji. However, the appellant was awake, questioned why the servant was opening the box and what his purpose was, which made the servant nervous.

Consequently, the servant closed the box, did not remove the bottles, and sent away the person who had arrived to receive them. He explained that his plan was to return to Abu Road, reach his home, and later send the liquor to the intended recipient at his convenience. The magistrate did not accept this defence and consequently convicted the servant Gangaram Makarji. The magistrate therefore entered a conviction against the servant, concluding that the defence offered was not credible in this case. The principal issue before this Court has been whether the facts incontrovertibly demonstrate that the appellant possessed any knowledge of the liquor concealed in his trunks. The Court observed that the appellant also lacked knowledge of the half-consumed bottle found in the attache case. It was further noted that the keys to both the trunks and the attache case were always in the possession of his servant Gangaram Makarji, who exercised complete control over the appellant’s luggage. Thus, the Court concluded that the prosecution had not proved beyond reasonable doubt that the appellant was aware of the liquor hidden in his baggage. Without such proof, liability under the cited sections could not be sustained by the prosecution in this particular case.

In this matter, the Court observed that the appellant never took part in the packing or unpacking of his luggage and that his servant, Gangaram Makarji, was solely responsible for handling the trunks and the attaché case. Because the appellant had no knowledge of the presence of liquor in the trunks and the attaché case, the Court held that he could not be held liable for any acts committed by his servant unless the prosecution proved beyond reasonable doubt that the appellant was aware of the liquor. The Court considered the possibility that Gangaram Makarji might have placed all the bottles of liquor in the appellant’s luggage for his own benefit, believing that the master’s luggage was unlikely to be inspected, whereas separate carriage of the bottles might have led to their seizure. Gangaram Makarji had presented a story that he intended to deliver the bottles at Sirohi Road station, where the relevant Act would not apply, but the Court noted that this explanation could have been offered merely as a mitigating factor because the liquor had been taken to Abu Road without his intention to retain it there. The Court emphasized that the appellant’s case should not be judged on the portion of Gangaram Makarji’s defence that was rejected. It was plausible that Gangaram Makarji had purposely hidden the bottles in the appellant’s luggage, hoping that no search would be made on the master’s belongings, especially since the appellant belonged to the princely family of Danta. According to Gangaram Makarji’s written statement, he feared that if he packed the bottles separately, the master would discover them and the servant would face difficulty; consequently, he concealed the liquor together with his master’s goods without the master’s knowledge.

The Court also recorded that several bills indicating the purchase of liquor were discovered in Gangaram Makarji’s pocket. These bills demonstrated that Gangaram Makarji had bought liquor in Delhi before he and his master departed for Abu Road on the night of 31 January 1954. The Court noted that it could not be determined whether the purchase was made on behalf of the appellant or on behalf of Punmaji Devaji. Nevertheless, the Sessions Judge concluded that Gangaram Makarji must have intended to transport the bottles to Danta in order to profit from them, rather than deliver them at Sirohi Road station, and that he kept the bottles in the appellant’s luggage because he believed that, being a member of the Danta princely family, the appellant’s luggage would not be inspected and the liquor would reach Danta undetected. The High Court regarded the attaché case found on the front seat of the jeep as the most important piece of evidence. Inside the case, among other items, was a bottle covered with a handkerchief; when the handkerchief was removed, the label read “Gordon’s Dry Gin,” and the cork, once opened, emitted the smell of liquor. The contents revealed that the bottle was half-consumed, indicating that it had been opened prior to its discovery.

In addition to the items previously mentioned, the attaché case also contained a glass that had been wrapped in a white handkerchief together with a spectacles case. Moreover, a half-consumed bottle bearing a label similar to that on the other bottle was discovered in one of the trunks. The High Court observed that no satisfactory explanation had been offered for the presence of this half-consumed bottle of liquor inside the attaché case. The defence put forward the suggestion that the bottle might have been placed in the attaché case by Gangaram Makarji after the train reached Abu Road, arguing that he would have had the opportunity to do so once the train had arrived at that station. The High Court rejected this suggestion, holding that there was no evidence to show that Gangaram Makarji entered the first-class compartment in which the appellant had travelled. It was, however, pointed out on behalf of the appellant that the memorandum of appeal filed by the State of Bombay before the High Court alleged that the prosecution’s case was that Gangaram Makarji had entered the appellant’s compartment in order to retrieve the luggage. The Sessions Judge had expressed the view that Gangaram Makarji would have had an opportunity to place the bottle in the attaché case when he entered the compartment at Abu Road station, and that it was probable that he might have done so because the attaché case was not locked and the servant might have thought that nobody would inspect his master’s luggage. The High Court noted that if the finding of the learned Judge or the inference drawn by the learned Additional Sessions Judge had rested on any positive evidence, even on a statement made by the accused, the Court would have hesitated to depart from the Sessions Judge on this crucial point. Nevertheless, the High Court did not accept the Sessions Judge’s opinion because there was no evidence that Gangaram Makarji actually entered the compartment. As already mentioned, the prosecution’s case was that Gangaram Makarji had indeed entered the compartment. The Court observed that when a servant removes his master’s luggage from a railway compartment, it would not be unusual for him to enter the compartment to check whether anything belonging to his master had been inadvertently left behind. The Court further observed that another aspect of the matter appeared to have been overlooked: the luggage, including the attaché case, had been taken to the first-class waiting room. The evidence did not clearly establish the interval of time between that transfer and the moment when the appellant entered the jeep, but the evidence indicated that the Rajmata of Danta had arrived at Abu Road in the same jeep in order to catch her train for Ajmer. The testimony of Trimbaklal Maganlal, PW 5, the railway head ticket collector, showed that the appellant had seen a person off on a train and then returned to the waiting room. Assuming that Gangaram Makarji had no opportunity to place a half-consumed bottle of alleged

According to the evidence, the luggage containing the attache case was removed from the first-class compartment and taken to the first-class waiting room. The servant, Gangaram Makarji, had the chance to place a half-consumed bottle of liquor in the attache case while the luggage was in the waiting room, because the appellant was absent from that room for some time while seeing a person off. After that interval the appellant returned to the waiting room, entered the jeep and left Abu Road. Consequently, it cannot be said with certainty that Gangaram Makarji was unable to put the bottle into the attache case before it was discovered, if he had wanted to do so.

The High Court appeared reluctant to depart from the Sessions Judge on the crucial question of whether Gangaram had an opportunity to insert the bottle into the attache case, primarily because there was no proof that he had entered the first-class compartment at Abu Road station. The presence of the bottle in the attache case is the most significant fact for deciding whether the appellant knew of the many bottles of liquor that were found in his trunks. If it is assumed that Gangaram could have placed the bottle in the attache case, then, irrespective of any argument about the appellant’s lack of knowledge of the trunk contents, the fact that the attache case was in his personal use during the journey from Delhi to Abu Road leads to the inference that he was aware of the bottle labelled “Gordon’s Dry Gin”. This inference is strengthened by the discovery of a leather spectacle case in the attache case without spectacles, while the appellant was in possession of a pair of spectacles at Abu Road station. The High Court, however, did not consider the possibility that the bottle could have been placed in the waiting room at Abu Road. Assuming that the appellant knew of the bottle, the next issue to resolve is whether the bottle actually contained any intoxicant. If it cannot be established that the bottle’s contents fall within the definition of “intoxicant” under the Act, then the mere presence of a bottle bearing the label “Gordon’s Dry Gin” cannot be used as evidence that the appellant knew of the numerous bottles of foreign liquor in his trunks. Section 2(24) of the Act defines “liquor” to include spirits of wine, denatured spirit wine, beer, toddy and any liquid containing alcohol or any other intoxicating substance that the State Government may declare as liquor by notification in the Official Gazette. Section 2(22) defines “intoxicant” to mean any liquor, intoxicating drug, opium or any other substance that the State Government may declare as intoxicant by such a notification.

The Act defines “liquor” in Section 2(24) as any spirit of wine, denatured spirit, wine, beer, toddy, and any other liquid that contains alcohol or any other intoxicating substance which the State Government may, by a notification in the Official Gazette, declare to be liquor for the purposes of the Act. “Intoxicant”, as defined in Section 2(22), means any liquor, intoxicating drug, opium or any other substance which the State Government may, by a notification in the Official Gazette, declare to be an intoxicant. Section 65(a) makes it an offence to import or export any intoxicant or hemp in contravention of the provisions of the Act, while Section 66(b) punishes any person who, in contravention of the Act, consumes, uses, possesses or transports any intoxicant or hemp. These provisions do not criminalise the mere importation or possession of alcohol. In the present case the only evidence offered to prove that the bottle found in the attache case was an intoxicant within the meaning of the Act was the testimony that, when uncorked, the bottle gave off the smell of liquor. The District Inspector of Prohibition and Excise, Veljibhai Virsingbai Chodhari, stated that the amount of liquid in the bottle was insufficient for a scientific test and that a determination of alcohol percentage could not be made by smell alone. Consequently, there is no clear proof that the liquid in the bottle was, first, liquor, and, second, an intoxicant as defined by the Act. It must also be remembered that, up to Sirohi Road station, the possession and consumption of intoxicating liquor was not an offence. Even if the bottle emitted an alcoholic odour when uncorked at Abu Road station, this fact does not necessarily establish that the contents were an intoxicant. The odour could persist even if the original liquor had been replaced by water or another non-intoxicating liquid. The High Court, according to the record, did not consider this point when evaluating the evidence.

The High Court’s conclusion was premised on the assumption that the bottle contained an intoxicant within the meaning of the Act, leading it to infer that the appellant had full knowledge that the bottle held foreign liquor. On that basis, the Court held that the possession of the bottle and its importation into a territory where the Act applied constituted an offence punishable under Sections 65(a) and 66(b), and it inferred that the appellant was also possessing and importing liquor in contravention of the Act. However, if there is no clear proof that the bottle’s contents were an intoxicant as defined by the statute, the mere presence of that bottle in the attache case does not inevitably lead to the conclusion that the appellant knew of the seventy-six bottles of foreign liquor in his trunks. In other words, without a definitive determination that the bottle contained an intoxicant, the existence of the bottle cannot be used to draw an adverse inference about the appellant’s knowledge of the other bottles. This observation forms a crucial part of the reasoning that calls into question the inference drawn by the High Court on the basis of circumstantial evidence.

The Court observed that the High Court had based its conclusion on the presence of a single bottle in the attaché case, and that this bottle had played a decisive role in forming a negative inference against the appellant from the circumstantial evidence presented. The Court noted that if no adverse inference could be drawn from the existence of that particular bottle, then it could not be safely assumed that the mere presence of seventy-six bottles of foreign liquor in the appellant’s trunks automatically proved that the appellant possessed knowledge of those bottles. The record showed that, although the trunks were legally owned by the appellant, every aspect of handling them—including packing, transporting and unpacking—was performed by his servant, Gangaram Makarji, who also retained the keys to the trunks. In addition, the personal belongings of Gangaram Makarji were discovered inside one of the trunks, indicating that the servant had exclusive access to the contents. The Court therefore considered the possibility that Gangaram Makarji might have exploited his control over his master’s luggage to bring a large quantity of liquor into Abu Road for his own commercial benefit. It was not unreasonable to suppose that the servant, aware of his master’s social standing, might have believed that the appellant’s luggage would escape inspection. The Court held that the Sessions Judge’s view—that the servant could have been moving the liquor to Danta for profit and that the appellant’s luggage would likely not be searched—was not wholly untenable.

Nevertheless, the Court concluded that the circumstantial evidence did not rise to a level where the only reasonable conclusion was that the appellant knew the contents of his luggage and therefore possessed and imported an intoxicant in violation of the Act. Because the inference of the appellant’s knowledge was not compelled by the facts, the Court found that a conviction could not be sustained. Accordingly, the appeal was allowed, the appellant’s conviction and sentence were set aside, and any fine that had been paid was ordered to be refunded.