The State vs Kartar Singh

Gurdev Singh, J.—This is a State appeal against an order of Shri K.S. Minhat, Magistrate First Class, Amritsar, dated 24th April, 1962, acquitting the Respondent Kartar Singh of the charge u/s 61(1 )(a) of the Punjab Excise Act.

The Respondent runs Halwai''s shop in Kucha Kbair-ud-Din, Ram Bagh, Amritsar. He was prosecuted on the allegation that on the evening of 6th December, 1961, when his shop was raided by H. C. Roshan Lal, he attempted to escape, and on search of bis person a quarter-bottle containing six ounces of country made-liquor, bearing the label "Excellent Quantity Maharaja Dhiraj Spiced Spirit" was recovered from the right dub of the pyjama that he was wearing. At the commencement of his trial on 7th March, 1962, when a charge u/s 61(1)(a) of the Punjab Excise Act was framed against him, the Respondent pleaded not guilty but subsequently on 23rd April, 1962, the date fixed for the prosecution evidence, he volunteered the following statement:

The quarter bottle belongs to me. It was recovered from me. I could not make the statement on the previous date due to some misunderstanding.

In view of this admission of the possession of six ounces of liquor, the prosecution did not lead any evidence. The report of the Chemical Examiner, to whom a sample of the stuff recovered was sent, was to the effect that the sample resembled licit spirits. The trial Magistrate on due consideration of the material before him, including the admission of the Respondent that he was found in possession of six ounces of licit liquor, however, acquitted the Respondent being of the opinion that the mere recovery of this quantity of liquor from the Respondent did not constitute an offence u/s 61(1)(a) of the Punjab Excise Act as the Halwai or confectioner''s shop was not a restaurant within the definition of that word as given in the Punjab Restaurant (Consumption of Liquor) Rules, 1955.

This order of acquittal has been assailed by the learned Assistant Advocate General on the grounds:-

(i) that the confectioner''s shop was a restaurant as defined in the above-mentioned rules, and

(ii) that in any case, the trial Court was wrong in acquitting the Respondent without complying with the provisions laid down in Section 251-A of the Criminal Procedure Code, and without affording an opportunity to the prosecution to substantiate this allegation.

On due consideration of the material before us and hearing the counsel on both the sides, we however, find no justification for interference with the trial Court''s order.

By virtue of notification No. 799-E&T-51/1482, dated the 27th of March, 1951, issued by the Punjab Government, the possession of one repute quart-bottle of 26 2/3 ounces of foreign liquor is not punishable under the Excise Act as every individual is permitted to possess the same. In the instant case the prosecution, however, relied upon the provisions of the Punjab Restaurant (Consumption of Liquor) Rules, 1955, in support of its contention that the Respondent was guilty of an offence u/s 61(i)(a) of the Punjab Excise Act. Rule 3, upon which the reliance is placed, runs as under:-

No person shall keep or have in his possession country liquor or foreign liquor in any quantity on any premises used as a restaurant in any of the places enumerated in the appendix where under Sub-section (4) of Section 24 of the Punjab Excise Act (1 of 1914) the consumption of liquor in a restaurant has been prohibited by the State Government by notification or in any other place in regard to which a similar notification may have issued or may subsequently be issued by the State Government, unless such premises have been licensed for consumption of liquor under the said Act or rules made thereunder or unless a certificate of exemption in form L-32 has been granted in respect of such premises.

It is true that this rule prohibits possession of country-made liquor or foreign liquor in any quantity on any premises used as a restaurant within the limits of various places, including the municipal area of Amritsar, yet before a person can be convicted for violation of this provision, the prosecution has to prove that the place from which recovery is effected is a "restaurant." The word "restaurant" is defined in Clause (a) of Rule 2 as: -

means any place to which the public is admitted for consumption of food or drink for a consideration.

The mere fact that the Respondent was running a Halwai''s shop is not enough to prove that the premises in which he was found in possession of six ounces of liquor was a restaurant. The prosecution had further to allege and prove that in this shop (a) the public was admitted for consumption of food or drink, and (b) that it was for a consideration. There are any number of Halwais'' shops or I premises in possession of confectioners, which are used merely for | preparation or sale of food or drinks without there being any arrangement for serving the customers with drink or food inside the shop. Such premises cannot fall within the definition of the word "restaurant" as contained in Clause (a) of Rule 2 of the Punjab Restaurant (Consumption of Liquor) Rules, 1955. In the instant case, there being no allegation in the complaint itself that in the shop run by the Respondent public was admitted for consumptoin of food and drink, the recovery of six ounces of liquor from the Respondent, even if accepted, was not in violation of Rule 3 of the Punjab Restaurant (Consumption of Liquor) Rules, 1955, nor constituted an offence u/s 61 of the Punjab Excise Act. On that short ground, the case of the prosecution was liable to be thrown out, and there was no justification even for framing a charge u/s 61(1)(a) of the Punjab Excise Act.

We also do not find any substance in the second complaint of the learned Assistant Advocate General regarding the procedure adopted by the trial Magistrate. On perusal of the record we find that several opportunities were given to the prosecution to produce evidence in support of its case, but no such evidence was produced, and though one of the prosecution witnesses happened to be present in one of the hearings, even he was not examined. On 23rd April, 1962, the Respondent, who had originally pleaded not guilty to the charge, however, made a statement admitting the recovery of six ounces of licit liquor from his possession. The prosecution seems to have been satisfied with this admission, and that is why it neither examined one of its witnesses who was present nor did it ask for further opportunity to produce its evidence. The prosecution seems to have been under the impression that the statement made by the Respondent on 23rd April, 1962, admitting the possession of six ounces of licit liquor was sufficient for his conviction. In this it was gravely mistaken, and if subsequenty the Magistrate found that this admission did not prove an offence u/s 61(1)(a) of the Punjab Excise Act, the prosecution cannot complain.

In his statement recorded on 23rd April, 1902, the Respondent had merely said:-

The quarter-bottle belongs to me. It was recovered from me. I could not make the statement on the previous date due to some misunderstanding.

This statement is merely admission of the fact that the bottle containing six ounces of licit liquor was recovered from the Respondent''s possession. It is not a confession of guilt since the Respondent did not admit that the premises in which he was apprehended with the liquor was a restaurant. Accordingly, he could not be convicted of the offence charged as the mere possession of six ounces of licit liquor was not punishable.

For the foregoing reasons, I find no force in this appeal and dismiss the same.

Mehar Singh, J.

I agree.