Shyama Charan Roy and Others vs State of Assam

S.N. Phukan, J.—This revision petition is directed against the judgment and order the learned Sessions Judge, Goalpara dated 16.4.85 passed in, terminal Appeal No. 20 (1) 1984. While dismissing the appeal the (sic) lower appellate court maintained the conviction of five accorded person namely, Shyama Charan Roy, Gandhi Mandal Roy, Dhruba chan Roy, Shri Naresh Biswas and Bani Prasad, u/s 4 the Assam Liquor Prohibition Act, 1952 for short, the Act and so the sentence of 3 months R.I. and a line of Rs. 500/- imposed the learned Chief Judicial Magistrate, Kokrajhar in C.R. Case (sic) 1717 of 1978.

The prosecution story of the case in brief is that on 29.10. (sic) at about 7 P.M. the Inspector of Excise, Kokrajhar stopped Ambassador car bearing registration No. WMD--4130 at Bismuri (sic) ariali and recovered 16 bottles of foreign liquor of foreign (sic) The car was coming from Bhutan and it was driven by accused yama and other four persons were occupant of the vehicle offence report submitted by the Excise Inspector under the head "points to prove" it was recorded that " illegal possession and ansport of Bhutan made foreign liquor ". Prosecution examined Inspector as P.W. 1 and one seizuro witness, P.W. 2 who state that he signed the seizure list exhibit-1 though it was not read over to him. Accused persons pleaded not guilty.

Heard Mr. D.C. Mahanta, learned Counsel for the petition and Mr. C.R. De, learned Public Prosecutor.

From reading the long title and preamble of the Act, it clear that this piece of legislation was enacted for the purpose (sic) prohibiting possession, consumption and manufacture of liquor and smuggling thereof into earstwhile sub-division of Barpeta and other areas of the State as may be necessary from time to time According to Sub-section (1) of Section 1, the Act extended to sub division of Barpeta, which is now a separate District, Sub-section (3) of the said Section 1 empowers the State Government to extended the Act by notification to any other areas of the State. It may be stated that this Act has been extended to some of the areas (sic) the State of Assam. Clause (6) of Section 2 of the Act define "Prohibited area" which means the area where the Act is enforced Section 3 inter alia provides that no person shall transport, important or possess liquor, sell or buy liquor. Section 4 provides for punishment for contravention of Section 3 and the minimum punishment prescribed is not less than 3 months and fine of Rs. 100/-

As stated earlier the Act has been extended to different stricts of the State of Assam. But I must confess that even roe it is difficult to know which is a Prohibited Area as there no publicity, no sign board etc. If one travells from one district another district crossing 2/3 other - districts in between It is difficult to know which is a prohibited district and which is not. That apart there is only one National Highway to Gauhati for all the (sic) States of the North Eastern Region, In some of the States for Sample, Meghalaya and Tripura there is no prohibition. If a person travells from Shillong, which is the headquarter of East Khasi Hills District, Meghalaya to Tura, West Garo Hills District of Meghalaya by road which is the only means of communication, he has to travel through Kamrup and Goalpara Districts and I understand both the districts are "Prohibited Area" though both East Khasi Hills and west Garo Hills Districts of Meghalaya are not "Prohibited Area". These facts, I can take judicial notice though have not been brought Into record.

Keeping in view the above position, let me examine the case in hand.

In this connection I may refer to a decision of this Court in Rohit Saikia v. The State of Assam (1986) 2 GLR 318, on which the learned Counsel for the Petitioner placed reliance, wherein the following has been stated in para 3 of the judgment:

The ''mens tea'' is an essential element of the offence and It is the duty of the prosecution to establish that the area was a dry area and it was made known to the inhabitants of the area that it was an offence to consume'' liquor in the area. In the absence of communication of the law it cannot be presumed that the accused committed the crime knowing it to be an offence. A stranger not aware of the fact that it is an offence to possess and/or consume liquor in a prohibited area may not be punished u/s 4 of "the Act " unless it is established that he carried or consumed liquor in a dry area knowing it be an offence. A person must have some guilty mind otherwise he cannot be convicted". This was stated in a case under the Act.

Coming to the case in hand there is not an iota of evidence that the place where, the recovery took place was a "Prohibited Area". On this ground alone the petition is liable to be allowed.

In view of the peculiar position as stated above, I have to examine Section 3 of the Act. In my opinion to convict a person u/s 3 of the Act, the prosecution must establish that possession of liquor in a ''Prohibited Area'' was for sale or consumption in the said area only and unless this is proved, no offence be made out. If a contrary view is taken, it will not only cause injustice, it may also cause harassment. For example, a person travelling from Shillong to Tura carrying liquor, can be stopped in the district of either Kamrup or Goalpara, he can be unnecessarily harassed as normally ho would carry such liquor for personal consumption at Turn, which is out-side the ''Prohibited Area'' i.e. the State of Meghalaya. Similarly, a person going from Shillong to Calcutta by air has to travell from Shillong to Gauhati by car and in the process, if he is stopped and recovery is made, he cannot convicted u/s 3 of the Act as it would be against the intention of legislature, which, will appear both from the long title and the preamble of the Act, as stated above. But harassment of and be caused to him. If a person residing in the state of Assam, the above principle is not followed, it may also be harassment of a innocent person. I was informed that the Districts of Jorhat Golaghat are out said the prohibited area whereas districts of Noagaon and Kamrup are not, A person travelling by road from Jorhat Shillong has to travell through the districts of Noagaon and Kamrup and he cannot be ropped in u/s 3 if he carries liquor for consumption at Shillong unless it is specifically proved by the prosecution that the person was actually carrying liquor for consumption or sale either in the Noagaon or the Kamrup District or both.

To sum up I hold that, to bring home a charge u/s 3 of the Act, the prosecution must prove beyond reasons doubt that possession of liquor in a prohibited area was for sale consumption within the said area. Similarly for consumption a if a person after taking liquor outside the "prohibited Area" travel through the "Prohibited Area", he cannot be convicted u/s 3 as the consumption of liquor was net in a "Prohibited Area".

Coming to the case in hand, there is absolutely no evidence that the place where the liquor was seized Was situated in "Prohibited Area" and that possession of the liquor by the accused persons at the place, even if it was a "Prohibited Area" was the purpose of sale or consumption in the Prohibited Area.

For the reasons stated above, I find merit in the present petition and accordingly, it is allowed by setting aside the impugned judgment and order. Accused persons are released from the liability of bail bond. If the liquor has not been sold, the bottles may be returned to the accused persons. In the alternative, the sale proceeds deposited shall be returned to them and the rule is made absolute.