In Re: B.V. Subbamma

Balakrishna Ayyar, J.—The petitioner is the wife of one Venkatachalapathi Rao. She and her husband were prosecuted before the Special Sub Magistrate, Vijayawada, under S. 4 (1) (a) of the Madras Prohibition Act. The Magistrate found them guilty and sentenced them to undergo rigorous imprisonment for one month each. The convicted persons appealed to the Joint Magistrate, Vijayawada. He acquitted the second appellant. He confirmed the conviction of the petitioner but for the sentence of one month''s rigorous imprisonment that had been imposed on her, he substituted a fine of Rs. 400. The petitioner now seeks to canvass the correctness of this order of the Joint Magistrate.

The facts found are these. The petitioner and her husband live in the some house. On 29th October 1951 a prohibition party went to the house of the second appellant; persons were posted to guard the house and then mediators were sent for. At that time the petitioner who had got the roughly alarmed came out to the verandah and took out from her sari a packet which contained 12 bottles labeled "Happy syrup." On chemical analysis, these were found to contain 2.3% alcohol acid 4.91% Chloral hydrates both being intoxicants. coming under the Prohibition Act When the search of the house was in progress, the petitioner''s husband came there and he told the prohibition Officers that these bottles of happy syrup were being manufactured by One Dr. Chennappa of Badvel, and that Chennappa had a license to manufacture and distribute these bottles to authorized druggists.

It is impossible to dispute the fact that these bottles were on the person of the petitioner when the prohibition party went to her house. Nor is it possible to controvert the fact that these articles cannot be possessed except under a license in view of the Madras Prohibition Act. S. 27 of the Indian Penal Code runs thus :

When property is in the possession of a person''s wile, clerk or servant on account of the person, it is in that person''s possession within the meaning of this Code.

On the basis of this section it was argued that the possession of the petitioner must he deemed to be the possession of her husband, and that the learned Joint Magistrate, having acquitted the husband, was not justified in convicting the petitioner. Nor it may be that the learned Joint Magistrate was in error in having acquitted the petitioner''s husband; but that is not a matter with which I am concerned here, Though S. 27 says that the possession of the wife is in certain circumstances, the possession of the husband, it does not say that such possession is not that of the wife also.

It was next argued that since Dr. Chennappa has permit from the Board to manufacture and distribute these bottles to authorized agents, no license was required by the petitioner or her husband for the possession of these bottles. I am unable to agree. In the first place I may remark that I have not been shown an authorized or certified copy of the license, which Dr. Chennappa is alleged to possess. In the second place, assuming that Dr. Chennappa had a license to manufacture and distribute this syrup to authorized druggists, it does not absolve the petitioner from the necessity of obtaining a license for possessing these bottles. The license of Chennappa would only validate his manufacture and distribution. It will not validate the possession of the petitioner. So far as the sentence is concerned, as the default imprisonment imposed does not exceed the substantive term of imprisonment awarded by the learned Sub Magistrate, I do not think that there is any justification for interfering with the fine imposed. The revision petition is therefore, dismissed.