Empress vs Gones Chandra Sikdar

The Petitioner, who has been convicted by the Deputy Magistrate of Goalundo under sec. 53 of the Excise Act (VII of 1878 of the Bengal Council) for manufacturing a liquor, called Sunjivani Sura, without a license, and has been sentenced to pay a fine of 15 rupees asks us to set aside the conviction and sentence on the ground that the Act of the petitioner does not constitute any offence under sec. 53 of the Act. [Here their Lordships proceeded to state the facts of the case].

The question is whether any offence under sec. 53 of the Excise Act is established against the accused.

Section 53 of the Excise Act provides that " whoever manufactures or sells any excisable article without a license shall be liable to a fine not exceeding 500 rupees for every such manufacture or sale."

Now "excisable article," as defined in Section 4 of the Act, " includes spirituous and fermented liquor and intoxicating drugs as defined by the "Act," and ''spirituous liquor,'' ''fermented liquor,'' and ''intoxicating drug'' are by the same Section defined thus :--" Spirituous liquor, includes any spirituous liquor imported into India or manufactured in India by any process of distillation.

''Fermented liquor'' includes. malt liquor of all kinds, tari fresh or fermented, pachwai diluted or undiluted, or any other intoxicating liqnor, which the Local Government may, from time to time, declare to be included in this definition.

''Intoxicating drugs'' include ganja, bhang, charas, every preparation and admixture of any of the above or any other intoxicating drug, which the Local Government may, from time to time, declare to be included in this definition.

So that the only description of excisable article, under which the liquor in question can possibly come is spirituous liquor. If it comes under that description, the conviction is right, if not, it must be held to be wrong.

The term, spirituous liquor, is not, however, defined in the Act. What is given as the definition of the term is, strictly speaking, no definition at all. It merely says, " spirituous liquor includes any spirituous liquor imported into India or manufactured in India by any process of distillation." So that it assumes that the term has a recognised meaning; though it does not say what that meaning is.

Now, whatever the exact meaning of the terms may be, we do not think that it is intended to include a medicinal preparation merely because it is a liquid substance containing alcohol in its composition. We observe that the liquor in the present case was manufactured from Gur or treacle mixed with orther ingredients, as to the nature of which we know nothing except this, that the preparation was made for medicinal purposes. The case would have been different if the accused had been found manufacturing alcohol or spirits separately for the purpose of being used in the preparation of a medicine, That, however, is not the case here. What he is found to have manufactured by the processes of fermentation and distillation is not alcohol or spirits separately, but the compound substance, the medicine at once. That act does not, in our opinion, come within the purview of Section 53.

The view we take receives support for the consideration that if it was an offence to manufacture this particular liquor, it would equally be an offence u/s 53 to sell it; but we do not think that, on facts found in this case, a conviction for selling it without license could be maintained.

The conviction and sentence in this case must, therefore, be set aside, and the fine, if realised, must be refunded.

Before concluding, we deem it our duty to take notice of a somewhat extraordinary passage that occurs in the judgment of the Lower Court. Referring to a previous case of this kind against the accused, in which the conviction was set aside by this Court, the learned Deputy Magistrate observes : "But in that case the Government was not represented, and it was disposed of by a Division Bench of the High Court ex parte : as I think the decision of the High Court on that occasion was not according to law, that decision is not binding." This was a most improper observation for the Deputy Magistrate to make and the course followed by him cannot be too strongly condemned. If the former case was distinguishable from the present, he should have pointed out the distinction Between the two. But it was not for him to say that a decision of this Court was not according to law and therefore not binding. In acting as the Deputy Magistrate has done, he has shown a most reprehensible disregard of principles, that should guide him in the discharge of his judicial duties.