Keki Bejonji And Another vs The State Of Bombay

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

Court: supreme-court

Case Number: Criminal Appeal No. 124 of 1959

Decision Date: 18 November 1960

Coram: Syed Jaffer Imam, Raghubar Dayal

In the matter titled Keki Bejonji and Another versus The State of Bombay, decided on 18 November 1960, the Supreme Court of India issued its judgment. The opinion was authored by Justice Syed Jaffer Imam, who sat with Justice Raghubar Dayal on the bench. The petitioners were Keki Bejonji and an associate, and the respondent was the State of Bombay. The judgment was pronounced on 18 November 1960. The case is reported in 1961 AIR 967 and 1961 SCR (2) 515, with citator reference RF 1972 SC2058 (10). The issues concerned a criminal trial involving the search and recovery of articles, the accused’s denial of knowledge of the seized items, the absence of questioning on the recovered articles, alleged prejudice to the accused, the operation of a statutory presumption, and whether a servant in his master’s premises could be deemed to be in possession of the master’s goods. The relevant statutes were Section 342 of the Code of Criminal Procedure, 1898 (V of 1898), and Sections 65(b), 65(f), 66(b) of the Bombay Prohibition Act, 1949 (Bombay Act 25 of 1949). During the police search of the premises occupied by appellant No 1, the authorities discovered a complete working still together with 516 units of illicit liquor. The still was being operated by appellant No 1 and his servant, appellant No 2. The Presidency Magistrate accepted that the still and the illicit liquor had been found. When appellant No 1 was examined under Section 342 of the Code of Criminal Procedure, he voluntarily stated that he knew nothing about the contraband seized by the police. Consequently, the Magistrate did not put any specific question to him regarding the still or other articles recovered from the premises. The Magistrate nevertheless convicted both appellants under Sections 65(b), 65(f) and 66(b) of the Bombay Prohibition Act, relying on the fact of the recovery of the still and the illicit liquor, but he did not invoke Section 103 of the Act to create a presumption against the appellants. On appeal by special leave, the appellants raised three principal contentions. First, they argued that no presumption under Section 103 of the Act could arise in these circumstances. Second, they contended that they had been denied an opportunity to rebut such a presumption because no questions were put to them during the examination under Section 342 of the Code of Criminal Procedure. Third, they submitted that, since the Magistrate had not applied Section 103 to create a presumption, the High Court should not have upheld the convictions on the basis of a presumption that had not been raised, without giving the appellants a chance to rebut it. Appellant No 2 further pleaded that he was merely a servant of appellant No 1; therefore, if anyone possessed the still it was appellant No 1, and no presumption against appellant No 2 could arise under Section 103 of the Act. The Court held that when an accused is examined under Section 342 of the Code of Criminal Procedure and voluntarily denies any knowledge of the articles recovered, no prejudice is caused to him by the absence of further questioning to explain possession of the articles found in the premises occupied by him. The presumption that arises under Section 103 of the Bombay Prohibition Act is that an offence under the Act

The Court explained that under section 103 of the Bombay Prohibition Act an offence is deemed to have been committed when a person is found in mere possession of any still, utensil, implement or apparatus for the manufacture of intoxicants, unless the contrary is proved. Accordingly, the Court held that no prejudice was caused to appellant No 1 when the High Court relied upon this presumption to sustain his conviction under section 65(f) of the Act. The Court further observed that an employee who merely works on the premises cannot be said to be in physical possession of articles belonging to his master unless those articles have been left in the employee’s custody. The Court noted that where an offence under section 65(f) of the Bombay Prohibition Act has not been established beyond reasonable doubt, and where the mere possession of a still does not amount to an offence under that section, the presumption under section 103 cannot arise against a person who cannot satisfactorily account for the still. In the present case, the still was in the possession of the master, and there was no evidence that the employee had, in any way, assisted his master in obtaining the still. Consequently, the Court concluded that appellant No 2 could not be said to have possessed the still in a manner that would constitute an offence under section 65(f) of the Act.

The judgment arose in criminal appellate jurisdiction, specifically Criminal Appeal No 124 of 1959. The appeal, taken by special leave, challenged the judgment and order dated 19 and 20 June 1959 of the former Bombay High Court in Criminal Appeal No 411 of 1959, which itself stemmed from the judgment and order dated 17 March 1959 of the Presidency Magistrate XX Court, Mazagaon, Bombay, in cases 1952‑54/P of 1958. Counsel for the appellants included B M Mistri, Ravinder Narain, S N Andley, J B Dadachanji, Rameshwar Nath and P L Vohra, while counsel for the respondent consisted of Nur‑ud‑din Ahmed and R H Dhebar. The decision was delivered on 18 November 1960 by Justice Imam. The appellants had been convicted by the Presidency Magistrate XX Court, Mazagaon, Bombay, under sections 65(b), 65(f) and 66(b) of the Bombay Prohibition Act, 1949. Appellant No 1 received a sentence of nine months’ rigorous imprisonment and a fine of Rs 1,000 under section 65(b), with no separate sentence imposed under the other sections. Appellant No 2 received six months’ rigorous imprisonment and a fine of Rs 500 under section 65(b), also without any separate sentence under the remaining provisions. Both appellants appealed their convictions and sentences to the Bombay High Court. The High Court set aside the convictions under sections 65(b) and 66(b) but upheld the conviction under section 65(f) read with section 81, relying on the presumption created by section 103 of the Act. Accordingly, the High Court directed that the imprisonment and fine imposed by the Presidency Magistrate under section 65(b) be treated as the sentence imposed under section 65(f) read with section 81.

The Court recorded that the imprisonment and fine originally imposed on the appellants under section 65 of the Bombay Prohibition Act, when read together with section 81, were to be treated as the punishment for the offence under section 65(f). The prosecution’s case was that a search had been conducted on 2 August 1958 at a premises occupied by appellant No 1 on the third floor of Dhun Mansion, Khetwadi, 12th Lane. During that search the officials discovered a complete, fully operational still and observed both appellants operating it. The record showed that appellant No 2 was using a motor pump to force air into a cylinder, while appellant No 1 held a rubber tube that was attached to the same tank. In addition to the still, the search team found an iron stand supporting a boiler, and beneath the boiler a stove that was alight at the time of the seizure. Near the still there was a large jar which, according to the prosecution, contained illicit liquor. Another glass jar, used as a receiver, was said to hold twenty drams of illicit liquor. The boiler itself was found to contain four gallons of wash, and eleven wooden barrels also holding wash were recovered. In the drawing‑room of the premises a small glass jar with twenty drams of illicit liquor, a bottle containing one and a half drams of illicit liquor, and a pint bottle containing three drams of illicit liquor were also discovered. A panchnama was drawn up to record the recovery of all these articles.

The prosecution further asserted that the appellants were engaged in the manufacture of illicit liquor, that they possessed the still and other apparatus for the purpose of producing an intoxicant, and that they were also in possession of the illicit liquor itself. The Presidency Magistrate was satisfied that a working still and the illicit liquor found in the glass jars and the two bottles were present on the premises. The High Court, while agreeing that a working still had indeed been found, expressed doubt that the evidence was sufficient to conclude that illicit liquor had been recovered, because the prosecution had not satisfactorily demonstrated that the bottles and glass jars had been sealed in the presence of the appointed officials, known as panchas. Moreover, the High Court found no record showing that the exact bottles from which the wash was taken were the same bottles examined by the Chemical Examiner who prepared a report for the Magistrate. Consequently, the High Court held that the convictions under sections 65(b) and 66(b) could not be sustained. On behalf of the appellants it was submitted that the statutory presumption under section 103 of the Act could not arise, since, according to the High Court’s findings, it had not been established that the still was an apparatus ordinarily used for the manufacture of any intoxicant. It was also argued that no questions had been put to the accused when they were examined under section 342 of the Code of Criminal Procedure, thereby denying them an opportunity to rebut any presumption that might have been applied.

In the present matter the Court observed that the procedural safeguards required by law had not been observed, because the appellants had not been afforded a chance to rebut the statutory presumption. The Presidency Magistrate had refrained from invoking section 103 of the Act against the appellants, on the ground that he had found illicit liquor recovered from the premises and that the still discovered was intended for the manufacture of such liquor. Nonetheless, the Court held that had the Magistrate intended to rely on the presumption created by section 103, he would have been obligated to give the appellants an opportunity to contradict that presumption. The Court further noted that, at the appellate stage, the High Court had expressed the view that the trial court had not established that any illicit liquor had been recovered as a result of the search. Accordingly, the High Court should not have affirmed convictions on the basis of the presumption under section 103 without first affording the appellants a chance to rebut it.

The offence alleged against appellant No 1 was punishable under section 65(f), which criminalises the using, keeping or possession of a still or apparatus for the purpose of manufacturing any intoxicant other than toddy. The evidence on record did not demonstrate that the still or apparatus seized from the premises occupied by appellant No 1 was a device that is not ordinarily employed in the manufacture of toddy. On behalf of appellant No 2 it was contended that he could not be convicted either for possession of the still or under section 65(f) read with section 81, which deals with abetment of an offence under section 65(f). The Court noted that appellant No 2 was merely a servant of appellant No 1. If any person possessed the still, that person was appellant No 1. No evidence was adduced to show that appellant No 2 had assisted appellant No 1 in acquiring the still. The record showed that appellant No 2 was only operating a pump, apparently under the directions of his master, and that he could not be said to be in possession of the still. Consequently, no presumption under section 103 could arise against him.

The Court proceeded to examine the case of appellant No 2 first. It found no evidence that he had in any manner aided his master in obtaining the still. It was reasonable to suppose that, while operating the pump, appellant No 2 was acting on his master’s orders and might not have been aware of the nature of the product being manufactured, regardless of any suspicion that might be drawn from his conduct. Moreover, the still was in the possession of the master, not of the employee. As an employee working on the premises, appellant No 2 could not be said to have physical possession of items belonging to his master unless those items had been placed in his custody. The Court concluded that, despite any suspicion that might arise, the prosecution had failed to establish beyond reasonable doubt that appellant No 2 was in possession of the still.

In the case of the second appellant, the Court observed that the statutory provision creating a presumption of possession under section 103 of the Act could not be applied because there was no evidence showing that he possessed the still in a manner that could not be satisfactorily explained. Consequently, the Court concluded that no presumption of guilt arose against him, and it therefore allowed his appeal, setting aside both his conviction and the sentence that had been imposed.

Regarding the first appellant, the Court found that he was indeed in possession of a still, and the evidence demonstrated that the still was of a type ordinarily employed for the manufacture of alcoholic liquor rather than for the production of toddy. The Court noted that toddy is either unfermented, in which case a still is unnecessary, or fermented, a natural process that does not require any apparatus. Although it was suggested that heating toddy might increase fermentation and potency, the record contained no evidence to support the claim that such heating required an elaborate still like the one found at the appellant’s premises. The Court also observed that the magistrate had not posed specific questions to the appellant to challenge the presumption created by section 103. However, when examined under section 342 of the Code of Criminal Procedure, the appellant voluntarily stated that he was unaware of any contraband seized by the police. Given this stance, the Court found it difficult to identify any further line of questioning that could have clarified his knowledge of the still and other articles discovered in the premises he occupied. Accordingly, the Court held that the appellant had not suffered prejudice from the magistrate’s failure to ask specific questions, and that the statutory presumption under section 103— which assumes an offence when a person is found in mere possession of a still, utensil, implement, or apparatus ordinarily used for manufacturing an intoxicant unless the contrary is proved—could not be rebutted by the appellant. The Court further concluded that it was unlikely the appellant could provide satisfactory evidence that the still and other items were ordinarily used for toddy production. As a result, the Court determined that there was no prejudice to the appellant, that the High Court’s reliance on the presumption under section 103 to uphold his conviction under section 65(f) of the Act was justified, and that the sentence imposed was not unduly severe in light of the provisions of the Act. Consequently, the appeal of the first appellant was dismissed while the appeal of the second appellant was allowed, with the latter’s conviction and sentence set aside.

The Court observed that the record did not contain satisfactory evidence capable of establishing that the still and the other articles discovered in the premises occupied by the appellant could ordinarily be used for the manufacture of toddy. In view of this deficiency of proof, the Court was accordingly satisfied that the appellant suffered no prejudice from the decision of the High Court, which had relied upon the presumption created by section 103 of the Act to uphold the appellant’s conviction under section 65(f) of the same Act. It was later submitted that the term of imprisonment awarded should be reduced. After considering that submission, the Court held that, having regard to the relevant provisions of the Act, the sentence imposed could not be described as unduly severe. Consequently, the Court allowed the appeal filed by appellant No. 2, set aside his conviction and nullified the sentence imposed on him, while dismissing the appeal filed by appellant No. 1. Both appeals were therefore disposed of in accordance with these findings.