State vs Garasia Natubha Ladhubha

Baxi, J.—The State has preferred this appeal against the order of the Sessions Judge, Gohilwad Division, acquitting the Respondent of the offence of consuming liquor without a permit u/s 66(b), Bombay Prohibition Act as applied to Saurashtra. The facts of the case are very simple. The Head Constable of Bhavnagar, B. Division, received information at about 10.30 p.m. on 24-9-1950 that a motor car driver was creating disturbance in a drunken condition near the Rupani building. He proceeded to the spot and found the Respondent in a drunken condition and his breath smelt of alcohol. On these facts the First Class Magistrate, Bhavnagar, convicted him of the offence of consuming liquor without a permit. The Respondent appenled to the Sessions Judge, Gohilwad Division, who following his own former decision which was confirmed by this Court in - ''State v. Pranjivan AIR 1952 Sau 35 (A) acquitted him on the ground that though it was proved that the Respondent had consumed an intoxicant, it was not proved that he has consumed it within the territorial jurisdiction of the Magistrate and consequently could not be tried by him. The State has preferred this appeal against the learned Sessions Judge''s order.

The decision of this Court in AIR 1952 Sau 35 (A) is to the effect that the prosecution must prove affirmatively all facts which give jurisdiction to the Court to try and in a charge of drinking liquor u/s 66(b), Prohibition Act it must prove that the accused drank it within the territorial limits of the Court. It is not enough to prove that he was found drunk within these limits. We agree with the above decision and this should be enough to dispose of the appeal.

The matter may be examined from Anr. angle also. 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. that he might have drunk it outside its jurisdiction. If they also admit of the latter inference, the prosecution fails.

Now in this case the following circumstances are proved: 1. That the Respondent was arrested in Bhavnagar at about 10.30 p.m. 2. That at the time of his arrest he was in an intoxicated condition and his breath smelt of alcohol. We need not waste time in. considering the question whether the above circumstances prove that the Respondent had consumed prohibited liquor. No other conclusion is possible.

But do these circumstances prove equally positively that the Respondent drank liquor within the territorial limits of the Court''s jurisdiction? In other words, can it be said that the circumstance of his being found drunk in Bhavnagar at 10.30 p.m. is incompatible with his having consumed liquor outside the Court''s jurisdiction? If it is not then obviously the prosecution has failed to prove beyond doubt that the offence was committed within the Court''s jurisdiction. In this connection we may quote the following passage from the judgment in AIR 1952 Sau 35 (A) of this Court:

�� ��. ��. ��. ��. ��.. ��. ��.. It is common knowledge that the effect of drink may last for several hours and during that interval a man may proceed from place to place. The local limits of the Magistrate at Bhavnagar are confined to the limits of Bhavnagar Taluka and Gadhada Mahal, and it is quite possible that a person may reach Bhavnagar from outside such limits within a very short period of time, especially in the modern time of quick travel by plane, car and railway.

The fact of the Respondent being found drunk in Bhavnagar at 10.30 p. m. is thus not incompatible with his having drunk wine outside the limits of the Court''s jurisdiction. It was, therefore, necessary for the prosecution to prove that the Respondent drank liquor in Bhavnagar or that he was in. Bhavnagar during all the time when he could have drunk it. Not having proved this fact the prosecution must fail.

The learned Advocate-General referred to - State Vs. Rangrao Bala and Others, and argued that the Respondent alone could have special knowledge of his movements and therefore the burden of proof that he was out the Court''s jurisdiction when he drank liquor lay on him. We do not think that the above decision goes so far. In that case the prosecution had discharged the burden by proving that the accused had consumed liquor and it was held that the prosecution having discharged the onus, it was for the accused to show that the liquor drunk by him was not prohibited liquor but was alcohol which he was permitted by law to take. This decision can have no application to the facts of the present case because the prosecution has not discharged its burden by proving that the Court has jurisdiction and until the prosecution does so, the Respondent cannot be called upon to give an account of his movements.

It was next urged by the learned Advocate-General that on merits it was proved that he had drunk liquor in the Court''s jurisdiction. He relied upon the Respondent''s statement to the Court that he had gone there to purchase petrol. It is true that by this statement he admits his presence in Bhavnagar when he was arrested but he does not admit his presence at any time previous to his arrest. Therefore even after his admission is taken, into account, it is not possible to hold it proved beyond doubt that the Respondent drank liquor within the Court''s jurisdiction. The appeal fails and is ordered to be dismissed.

Shah, C.J.

I agree.