Rabari Ramji Arjan vs State

Chhatpar, J.—This revision application arises out of the conviction of the applicant of the offence of consuming liquor u/s 66-B, Prohibition Act. He was sentenced to three months rigorous imprisonment and to pay a fine of Rs. 500/-. He was found drunk on 16-8-52 and alleged to be behaving: in a disorderly manner in a restaurant at Rajkot. He was apprehended and afterwards examined by a doctor, who found that he had consumed alcohol. The breath of the applicant was smelling of alcohol and alcohol was also detected in his urine. But he was then not so inebriate as not to take care of himself. He was examined by the doctor some hours after he was apprehended. The applicant-accused stated in the trial Court that he had'' taken opium and not liquor. The trial Court disbelieved the accused and held that the accused had consumed liquor relying upon the evidence of the doctor and other witnesses. From this decision, the accused preferred an appeal, which was dismissed by the Sessions Judge. The accused has now come before us in revision.

Mr. Shukla the learned advocate for the applicant has raised two points. The first relates to jurisdiction relying upon two decisions of this Court. He contends that the prosecution had not established that the accused had consumed liquor at any place within the jurisdiction of the Magistrate''s Court. This plea was raised for the first time in the Magistrate''s Court at the time of arguments. The accused''s case was that he had taken only opium. But the Magistrate had sufficient evidence on the record to come to the conclusion that liquor was taken by the accused at Rajkot. This evidence was that the accused belonged to Rajkot where he has been residing for live years and that, on that very same day he was seen at the restaurant. So it was not likely that he could have consumed liquor at any place outside Rajkot. This is a finding of fact with which we silting as a Court of revision, would not like to interfere specially as the Sessions Judge has confirmed the conviction.

It is no doubt necessary as laid down by a Division Bench of this Court in - ''State v. Pran-jiwan Gandalal AIR 1952 Sau 35 (A)(judgment delivered by me) that it is incumbent on the prosecution to establish positive facts giving jurisdiction to a Court in all cases. This decision was followed by two Division Bench decisions of this Court in - ''State v. Talsi Sadul AIR 1953 Sau 14 (B) and - ''State v. Garasia Nathubha Ladhublia AIR 1954 Sau 17 (C). In the latter case it was observed:

In all criminal cases the burden of proving that the Court which is called upon to convict the accused has jurisdiction to do so always lies on the prosecution. It would not be enough to say merely that the accused committed the offence charged. It is also necessary to prove all facts which give the Court jurisdiction to try the offender. The offence of drinking an alcoholic drink is complete as soon as the offender drinks it and therefore the only Court which can try the accused is the Court within the limits of whose jurisdiction the accused drank it. The prosecution has therefore to prove that the accused drank the wine within the limits of the Court trying him.

It may discharge this burden by leading direct evidence. It may also discharge the burden by proving circumstances from which it can be inferred that the accused drank the intoxicant "within its limits. But the circumstances proved must, admit of the only inference that the accused drank intoxicant within the Court''s jurisdiction and must be incompatible with the alternative inference viz., (hat he might have drunk it outside its jurisdiction. If they also admit of the latter inference, the prosecution fails.

In the present case the trial Court had found from circumstantial evidence that liquor was drunk by the accused at Rajkot and therefore there is no occasion for us to examine the case further.

But the learned Advocate General has argued that our decisions are open to some doubt in view of my judgment; in the case of - ''State v. Pran- jivan (A)'' having been dissented from by Vasudeo Murti J., of the Mysore High Court in - ''Gullegar Settv v. Slate of Mysore AIR 1953 Mys 31 (D). It therefore becomes necessary for me to dilate upon the subject to clarify the import of this Division Bench decision. In that case the accused was coming on a bicycle to Bhavnagar in Saurashtra from the side of Chitra in the Bombay State the distance between the two being a few miles. The Advocate General had raised two contentions; first that a presumption u/s 114. Indian Evidence Act should be raised that a person should be presumed to have consumed liquor at the place where he was found drunk. I repelled this contention that no such presumption of consuming liquor at a particular place could be raised from the mere fact that the person alleged to have consumed liquor was found drunk at that place. And the reasoning was that the effect of drink may last for several hours and during that interval a man may proceed from place to place. This part of my judgment has been agreed to by the learned Judge of the Mysore High Court.

The second contention was as to the applicability of Section 106, Indian Evidence Act. The Advocate General had argued that the fact of drinking at a particular place was within the special knowledge of the accused and the burden would lie upon him to disclose it. My remarks on this point were that Section 108 applies to criminal cases but positive facts giving jurisdiction to a Court must in all cases be established by evidence by the prosecution. These remarks have been commented upon by the learned Judge of the Mysore High Court. On a careful consideration we abide by the decision given by the Division Bench of this Court that Section 106, Indian Evidence Act cannot be invoked to prove a jurisdictional fact on the existence of which the Magistrate alone could take cognizance of the case, it being the duty of the Magistrate to determine whether he has jurisdiction before he proceeds with the trial of the case. If the prosecution leads no evidence as to the place of the commission of the offence, it is certainly not incumbent upon the accused to prove where he committed it. Section 106, Indian Evidence Act, can be resorted to in appropriate cases in the course of a criminal trial as implied by illustration (b) to the section. But it cannot be invoked to make good the lacuna in proving essential facts of an offence and more emphatically for establishing facts necessary to give jurisdiction to the Court. These remarks are, however, subject to any special procedure or rule of evidence provided by any particular enactment.

We venture further to remark that ordinarily there is very little scope for the application of Section 103, Indian Evidence Act, to criminal cases| where the onus of proof is always on the prosecution and the section cannot be invoked to shift the onus on the accused. We may refer to the two Privy Council cases of - ''Attvgalle v. The King AIR 1936 PC 169 (E) and - AIR 1936 289 (Privy Council) , the latter being followed by the Calcutta High Court in - ''Matilal v. The King AIR 1949 Cal 586(G).

The second contention raised by Mr. Shukla is that the accused had not taken liquor but opium. The concurrent finding of fact of two lower Courts is against the accused. It is not the practice of this High Court to interfere lightly in revision with such findings. We, therefore, reject this contention.

Lastly, Mr. Shukla has appealed that the accused may be given benefit of Section 92 of the Act. This question lies within the discretion of the lower Courts, and ordinarily we do not interfere in revision. The Sessions Judge has applied his mind to this question and we see no reason to interfere.

We, therefore, dismiss this revision application.

Baxi, J.

I agree.