The State vs Shyam Narain Prasad

Sahai, J.—This Government appeal is directed against a judgment of a Judicial Magistrate, with first class powers, of Patna.

The respondent, Shyam Narain Prasad, aged about 18 years, was found, on 24-11-1951, to be in possession of five bottles of country liquor with the U. P. Strength ''50'', each bottle containing 20 oz. of liquor. As he was in possession of more liquor than he could legally be in possession of, a report for his prosecution was filed on the basis of a report (Ext. 3) made by Kedar Nath Mahto (P. W. 1), Excise Assistant Sub-Inspector of Patna City. On this basis, he was put upon his trial before the learned Magistrate who acquitted him by his order dated 1-3-1952.

The fact that the respondent was found to be in possession of the aforesaid quantity of country liquor was not disputed in the trial court, and it has not been disputed in this Court on his behalf. The only question is whether he can be held guilty of having committed an offence u/s 47(a), Excise Act read with Section 19 of that Act, the offence with which he was charged. It seems to be clear that the learned Magistrate has misdirected himself on the question of law. Sub-section (1) of Section 19, Bihar and Orissa Excise Act provides as follows:

No person not being licensed to manufacture, cultivate, collect or sell any excisable article shall have in his possession any quantity of any excisable article in excess of such quantity as the Board has, u/s 5, declared to be the limit of a retail sale, except under a permit granted by the Collector in that behalf.

Sub-section (4) of Section 19 of the said Act as it originally stood provided as follows:

Notwithstanding anything contained in the fore-going sub-sections, the local Government may, by notification, prohibit the possession by any person or class of persons, either in the Province of Bihar and Orissa or in any specified local area, of any excisable article, either absolutely, or subject to such conditions as it may prescribe.

The respondent was not alleged to have contravened any notification of total or partial prohibition against possession of country liquor issued under Sub-section (4). The allegation against him was that he had contravened the provisions of Section 19 (1) by being in possession of five bottles of liquor as that was in excess of the limit of retail sale prescribed by the Board of Revenue for the area in which the respondent was found to be In possession of the liquor by a notification issued u/s 5, Excise Act, That notification of the Board is Notification No. 23-1-51-1 dated 14-3-1951, by which amendment, has been made in Board''s Notification No. 23-37-1 dated 29-4-1919, and the limit of retail sale has been fixed at one bottle containing 20 oz. of ''50'' U. P. strength.

One of the questions which the learned Magistrate has formulated for his consideration is

(1) What would be interpretation of Section 19 (4), Bihar and Orissa Excise Act (2 of 1915) to this case?

I do not think that he was called upon to consider this question at all. As the allegation, stood against the respondent, the learned Magistrate had only to consider whether the Board had imposed any limitation on retail sale, and, if so, was the respondent in possession of a quantity of country liquor in excess of the limit so prescribed. As he formulated a wrong question, he referred to a Special Bench case of this Court reported in Kanhai Sahu Vs. Emperor, .

The question which was considered in that case was whether, in view of the wording of Section 19 (4) Of the Excise Act, the Provincial Government or the Board could prohibit only particular persons or class of persons or persons generally from being in possession of any intoxicant. Their Lordships held that Section 19 (4) was an exception to the other provisions of Section 19, because, under the other provisions, all persons other than licensees under the Act might possess certain limited quantities of intoxicants, but u/s 19 (4) prohibition could be imposed against a certain person or a class of persons, and not against the public generally of any particular area.

Section 19 (4) has been amended, and the amended sub-section came up for consideration before a Division Bench of this Court, and that decision has been reported in Emperor Vs. Bhola Prasad, . It has been made clear in that decision that prohibition against possession of certain forms of intoxicating liquor in certain areas could also be imposed against the public generally by a notification issued under the amended Sub-section (4) of Section 19 and that such a notification which had been issued was valid. In any case, it seems to me that neither of these two decisions has any application so far as the facts of this case are concerned, because we are concerned in this case with Sub-section (1) and not Sub-section (4) of S. la.

The learned Magistrate has held that the notification issued u/s 5 by the Board of Revenue fixing the limit of retail sale is ''ultra vires'' and untenable. I do not see any ground for coming to any such conclusion. Indeed, the learned Advocate for the respondent himself has conceded that the notification in question cannot be held to be invalid or ''ultra vires''.

The result is that, under the aforesaid notification of the Board, the limit of retail sale has been fixed as one bottle of country liquor of ''50'' U. P. strength. In view of Section 19 (1) no person can be in possession of country liquor beyond this limit. As the respondent was in possession of five bottles of the aforesaid description of country liquor, he has clearly committed an offence u/s 47 (a), Excise Act. I would, therefore, allow the appeal, set aside the order of acquittal of the respondent, and convict him of an offence u/s 47 (a) of the aforesaid Ace.

The only question that now remains for decision is what sentence should be imposed upon the respondent. In view of the fact that he is a young boy aged about 18 years, I do not, think that it would be proper to send him to jail. A small fine should be enough to meet the ends of Justice in this case. I would, therefore, sentence him to pay a fine of Rs. is/- or, in default, to undergo simple imprisonment for fifteen days.

Jamuar, J.

I agree.