In Re: Jayachandra Chetty and Another

Wallace, J.—The 1st petitioner in this case had been convicted of escaping from lawful custody and the 2nd petitioner of rescuing him from

lawful custody, the 1st petitioner having been arrested by the Abkari Sub-Inspector for being in possession of an illicit quantity of arrack, and 2nd

petitioner has also been convicted of assaulting the Sub-Inspector. The assault and the rescue have been held to have been proved as facts by both

the Lower, Courts and that concurrent finding of fact has not been disputed, as it could not easily have been disputed before this Court exercising

its powers of revision. The facts are that the 1st petitioner is a servant of the 2nd accused who holds an arrack license for certain premises, that the

1st petitioner was conveying without a permit from 2nd accused''s shop to his house a quantity of arrack in excess of the amount which the 2nd

accused or any one else is permitted to hold under the rules out-side licensed premises, that the 1st petitioner was caught by the Abkari Sub-

Inspector in possession of this arrack and arrested, and that when the Sub-Inspector was taking him to the police station accused 2 and the 2nd

petitioner came up, assaulted the Sub-Inspector and rescued the 1st petitioner who made good his escape.

In this Court it is pleaded that the custody of the 1st petitioner by the Abkari Sub-Inspector was not lawful and therefore no offence has been

committed. This plea rests on three contentions: (1) that the 1st petitioner was not in possession within the legal meaning of that word, of the

arrack, (2) that the original offence was not one for which he could be arrested, and (3) that the action of the Sub-Inspector in taking him to the

police station was contrary to law. As to the first point, the contention is that the 1st petitioner was really ''transporting'' arrack, and was not in

possession of it within the legal meaning of the term. No authority has been cited for this position. No doubt he was transporting the arrack, but I

do not see how It can be said that he was not also in possession of it. In the absence of any indication in the Abkari Act to the contrary,

''possession'' has its ordinary meaning and the 1st petitioner was certainly in possession of the arrack when he was carrying it. I see no force in this

point.

As to the second'' point the argument is based on a contention that the offence comes u/s 56 and not Section 55 of the Abkari Act, and that

Section 34 gives no authority to an Abkari Officer to arrest for an offence u/s 56. The question is, does the present offence fall u/s 56(b), and, if it

does, does that prevent it falling also u/s 55(a)? The wording of Section 56(b) is very clumsy:

Whoever does anything in breach of the conditions of his license not otherwise provided for in this Act.

This language is, to say the least, very dubious English, but I take it to mean,

Whoever does anything which amounts to a breach of the conditions of his license which breach is not otherwise provided for in this Act;

that is, that the breach will be punishable under this section if it is not already designated as punishable under some other section. A breach u/s

56(b) is a breach distinct from those provided for u/s 55. Breaches u/s 56 are, apparently from the fact that they do not entail liability to arrest, of a

less heinous kind than those u/s 55. I have no doubt that possession of an illicit quantity of arrack in breach of the license or permit or rule under

the Act comes u/s 55(a) and therefore does not come u/s 56(b). Therefore on the second point I hold that the 1st petitioner was lawfully liable to

arrest u/s 34.

As to point 3, it involves a consideration of Section 40(1) which lays down that on arrest the arrested person shall, if bail is not accepted, be

forthwith forwarded to an Abkari Inspector, or, IT there is no such officer within ten miles, to the nearest police station. There is no doubt that in

this case there was an Abkari Inspector in Madras within ten miles of the scene of arrest. There is no doubt also that the Abkari Sub-Inspector

who effected the arrest was taking the 1st petitioner to the police station; he definitely says so in his evidence, and it was when the 1st petitioner

was almost at the police station that he was rescued.

Section 40(1) as it stands seems impracticable to work. The arresting officer and the person arrested are to start off at once on a wild goose

chase after an Abkari Inspector, who is a touring officer and may be anywhere within a circle of ten miles from the scene of arrest. The section

would seem to indicate that this is the proper procedure. If any attempt is to be first made to find out the whereabouts of the Inspector within the

circle, it is not clear what is to be done with the arrested person while this enquiry is being made. A reference to Section 34 proviso still further

increases the difficulty of knowing what is '' the proper procedure. In that proviso, if the arresting officer is not authorised to admit to bail, he must

forward the arrested person forthwith to an officer empowered to grant bail if there is such an officer within five miles. If such an officer is a Police

Inspector who is at the police station, then obviously the arrested person must Be sent to the police station for the purpose of admitting to bail. It

follows then that if the arresting officer can admit to bail he cannot send the arrested person to the police station; but if he cannot admit to bail, then

he'' can send the arrested person to the police station, a rather topsyturvy result. Whether the Abkari Sub-Inspector in this case was empowered

to grant bail does not appear to have been put in issue in the case. Before the Lower Appellate Court the petitioners argued that he was not so

empowered. If so, then Section 34; proviso would apply and the Abkari Sub-Inspector was in law bound to send him to an'' officer who could

grant bail, such as the Police Inspector, and the taking of the 1st petitioner to the police station would then seem to be perfectly lawful. I am of

opinion that if the petitioners wanted to make anything of this point, they should have done so before the trial Court when it could have been put in

issue whether the arresting officer had or had not power to grant bail., This was not done. There is no definite fact proved from which I can

conclude that Section 40 and not Section 34 proviso applies to this case. Nor am I prepared at this stage to call for information.

I find therefore no case has been made out for revision and I dismiss this petition.

I would respectfully urge on Government the necessity of revising these provisions of the Abkari Act. This Court has in two other cases, namely,

Cr.R.C. Nos. 515 of 1924 and 368 of 1925, pointed out how confused and irreconcilable these sections regarding arrest and detention of persons

suspected of committing Abkari offences are and what difficulties are put in the way of the Courts which endeavour to interpret them.