Case Analysis: Keki Bejonji And Another vs The State Of Bombay

Case Details

Case name: Keki Bejonji And Another vs The State Of Bombay
Court: Supreme Court of India
Judges: Syed Jaffer Imam, Raghubar Dayal
Date of decision: 18 November 1960
Citation / citations: 1961 AIR 967; 1961 SCR (2) 515
Case number / petition number: Criminal Appeal No. 124 of 1959; Criminal Appeal No. 411 of 1959; Case Nos. 1952-54/P of 1958
Proceeding type: Criminal Appeal
Source court or forum: Supreme Court of India

Source Judgment: Read judgment

Factual and Procedural Background

On 2 August 1958 the police searched premises occupied by appellant No. 1 on the third floor of Dhun Mansion, Khetwadi, Bombay. The search recovered a complete working still, an iron stand with a boiler, a stove beneath the boiler, a large jar, a glass jar used as a receiver, four gallons of wash in the boiler, eleven wooden barrels containing wash, and several small glass jars and bottles that were alleged to contain illicit liquor.

The Presidency Magistrate, XX Court, Mazagaon, found a working still and illicit liquor and convicted both appellants under sections 65(b), 65(f) and 66(b) of the Bombay Prohibition Act, 1949. Appellant No. 1 received nine months’ rigorous imprisonment and a fine of Rs 1,000 under section 65(b); appellant No. 2 received six months’ rigorous imprisonment and a fine of Rs 500 under section 65(b). No separate sentences were imposed under sections 65(f) or 66(b).

Both appellants appealed to the Bombay High Court (Criminal Appeal No. 411 of 1959). The High Court set aside the convictions under sections 65(b) and 66(b) but affirmed the conviction under section 65(f) read with section 81, relying on the statutory presumption created by section 103. The High Court treated the sentence originally imposed under section 65(b) as the sentence for the conviction under section 65(f) and 81.

The appellants obtained special leave to appeal to the Supreme Court of India (Criminal Appeal No. 124 of 1959). The appeal was heard before Justices Syed Jaffer Imam and Raghubar Dayal and was decided on 18 November 1960.

Issues, Contentions and Controversy

The Court was required to determine:

(1) Whether the presumption of guilt under section 103 of the Bombay Prohibition Act could be attracted against appellant No. 1, given the character of the still recovered and the alleged lack of an opportunity to rebut the presumption.

(2) Whether the same presumption could be attracted against appellant No. 2, who claimed to be merely a servant operating a pump and not in possession of the still.

(3) Whether the convictions under sections 65(b) and 66(b) could be sustained in view of the prosecution’s failure to prove the recovery of illicit liquor and the chain of custody of the seized bottles.

(4) Whether the sentence imposed on appellant No. 1 was unduly severe.

The appellants contended that the still was not “ordinarily used” for the manufacture of any intoxicant other than toddy, that no specific questions under section 342 of the Code of Criminal Procedure had been put to them to enable rebuttal of the presumption, and that appellant No. 2, as a servant, did not possess the still and therefore could not be held liable. The State argued that the still was an apparatus used for illicit liquor manufacture, that possession of the still attracted the presumption against both appellants, and that the convictions and sentences were proper.

Statutory Framework and Legal Principles

Section 65(b) of the Bombay Prohibition Act penalised the manufacturing of illicit liquor; section 65(f) penalised the use, keeping or possession of a still or apparatus for the purpose of manufacturing any intoxicant other than toddy; section 66(b) dealt with possession of illicit liquor; section 81 prescribed the sentencing framework; and section 103 created a statutory presumption that an offence was committed when a person was found in possession of a still or apparatus “ordinarily used” for the manufacture of an intoxicant, unless the contrary was proved.

Section 342 of the Code of Criminal Procedure governed the examination of an accused and required that an accused be given a reasonable opportunity to rebut any statutory presumption.

The Court articulated a two‑fold test for the operation of the presumption under section 103:

1. The apparatus seized must be “ordinarily used” for the manufacture of an intoxicant other than toddy.
2. The accused must be in “possession” of that apparatus, meaning physical custody or control.

The presumption could be displaced only if the accused was afforded a fair opportunity to rebut it and no prejudice resulted from the trial court’s conduct.

Court’s Reasoning and Application of Law

The Court first examined appellant No. 2. It found that the evidence showed he had operated a motor pump to pump air into a cylinder under the direction of appellant No. 1 and that no material was placed before him indicating that he had physical custody of the still. Applying the second limb of the test, the Court concluded that appellant No. 2 was not in possession of the still; consequently, the presumption under section 103 could not be invoked against him. The Court therefore set aside his conviction under section 65(f) read with section 81 and his sentence.

Turning to appellant No. 1, the Court noted that a “complete working still” had been recovered from his premises and that the description of the still indicated it was not ordinarily used for the manufacture of toddy, which does not ordinarily require a still. Satisfying the first limb of the test, the Court held that the still was an apparatus “ordinarily used” for the manufacture of intoxicants other than toddy. The Court also found that appellant No. 1 was in possession of the still. Although the appellant had not been asked specific questions about the still under section 342, he had voluntarily stated that he did not know about the contraband seized. The Court held that this voluntary statement removed any claim of prejudice and that the statutory presumption was properly applied. Accordingly, the Court affirmed the conviction under section 65(f) read with section 81.

Regarding the convictions under sections 65(b) and 66(b), the Court accepted the High Court’s finding that the prosecution had failed to prove the presence of illicit liquor in the sealed bottles and the chain of custody of the samples; therefore, those convictions remained set aside.

The Court examined the sentence imposed on appellant No. 1 and held that, in view of the provisions of the Act, a term of nine months’ rigorous imprisonment and a fine of Rs 1,000 were not unduly severe.

Final Relief and Conclusion

The Supreme Court allowed the appeal of appellant No. 2, setting aside his conviction and the accompanying sentence of six months’ rigorous imprisonment and a fine of Rs 500.

The Court dismissed the appeal of appellant No. 1, thereby upholding his conviction under section 65(f) read with section 81 and the sentence of nine months’ rigorous imprisonment and a fine of Rs 1,000.

In sum, the Court affirmed that the statutory presumption under section 103 applied only when the accused possessed an apparatus ordinarily used for the manufacture of intoxicants other than toddy and when the accused was given a fair opportunity to rebut the presumption. The conviction of the proprietor who possessed such a still was sustained, while the conviction of the servant who did not possess the still was reversed.