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: Bombay High Court (former) and Presidency Magistrate XX Court, Mazagaon, Bombay
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, 12th Lane. The search disclosed a complete working still together with an iron stand, a boiler, a stove beneath the boiler, a large jar, two glass jars, a bottle containing one‑and‑half drams of liquor, a pint bottle containing three drams of liquor, a small glass jar containing twenty drams of illicit liquor, four gallons of wash in the boiler and eleven wooden barrels of wash. A panchnama recorded the recovery of these articles.
The prosecution alleged that the appellants were manufacturing illicit liquor and were in possession of the still and the liquor. It further alleged that appellant No. 2 pumped air into the still’s cylinder with a motor pump while appellant No. 1 held a rubber tube attached to the tank, indicating that both were actively operating the apparatus.
The Presidency Magistrate (XX Court, Mazagaon, Bombay) convicted both appellants under sections 65(b), 65(f) and 66(b) of the Bombay Prohibition Act, imposing nine months’ rigorous imprisonment and a fine of Rs 1,000 on appellant No. 1 and six months’ rigorous imprisonment and a fine of Rs 500 on appellant No. 2. The sentences under sections 65(b) were treated as sentences under section 65(f) read with section 81.
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) on the basis of the statutory presumption contained in section 103 of the Act, directing that the sentence originally imposed under section 65(b) be treated as the sentence for the conviction under section 65(f) read with section 81.
Special leave was granted to the Supreme Court of India, and the matter was taken up as Criminal Appeal No. 124 of 1959. A two‑judge Bench comprising Justice Syed Jaffer Imam and Justice Raghubar Dayal heard the appeal and delivered the judgment on 18 November 1960.
Issues, Contentions and Controversy
The Court was called upon to resolve three principal issues:
1. Possession and statutory presumption against appellant No. 2: Whether appellant No. 2 was in possession of the still or an apparatus ordinarily used for the manufacture of an intoxicant other than toddy, and consequently whether section 103 could be attracted against him.
2. Possession and statutory presumption against appellant No. 1: Whether the still recovered from appellant No. 1’s premises was an apparatus ordinarily used for the manufacture of an intoxicant other than toddy, and whether the conviction under section 65(f) could be sustained on the basis of the presumption in section 103 without prejudice to the appellant.
3. Severity of the sentence imposed on appellant No. 1: Whether the nine‑month rigorous imprisonment and fine of Rs 1,000 were unduly severe in view of the provisions of the Act.
The appellants contended that the presumption under section 103 could not arise because (i) the still had not been shown to be an apparatus “ordinarily used” for manufacturing intoxicants other than toddy, (ii) appellant No. 2 was merely a servant who operated a pump and did not possess the still, and (iii) no opportunity had been afforded to rebut the presumption under section 342 of the Code of Criminal Procedure. They further argued that the bottles and jars had not been sealed in the presence of the panchnama and that the samples examined by the chemical examiner might not have corresponded to the seized containers. Finally, they submitted that the sentence on appellant No. 1 was unduly severe.
The State maintained that the discovery of a complete working still and the presence of liquor in several containers demonstrated possession of an apparatus ordinarily used for manufacturing an intoxicant other than toddy. Accordingly, it urged that section 103 should be invoked against both appellants and that the sentence on appellant No. 1 was proportionate.
Statutory Framework and Legal Principles
The Court considered the following provisions of the Bombay Prohibition Act, 1949:
Section 65(b) – penalises the use, keeping or possession of any utensil, implement or apparatus for the manufacture of toddy; Section 65(f) – penalises the same for any intoxicant other than toddy; Section 66(b) – deals with the possession of illicit liquor; Section 81 – provides for the substitution of sentences; and Section 103 – creates a statutory presumption that a person found in possession of a still or apparatus “ordinarily used for the manufacture of any intoxicant other than toddy” is deemed to have committed an offence unless he proves otherwise.
Section 342 of the Code of Criminal Procedure governs the examination of an accused and requires that the accused be given a reasonable opportunity to rebut any statutory presumption that may be invoked.
The legal test articulated by the Court required (i) that the seized apparatus be “ordinarily used” for the manufacture of an intoxicant other than toddy, and (ii) that the accused be in actual possession of such apparatus for the purpose of manufacturing intoxicants. Where both prongs were satisfied, the burden shifted to the accused to rebut the presumption under section 103.
Court’s Reasoning and Application of Law
Regarding appellant No. 2, the Court examined the evidence that he had operated a motor pump under the direction of appellant No. 1. It held that operating a pump did not amount to possession of the still, nor did the evidence show that appellant No. 2 had aided his master in acquiring the still. Consequently, the Court concluded that the factual matrix did not satisfy the possession requirement of section 103, and the presumption could not be attracted. Accordingly, the conviction under section 65(f) was unsustainable and was set aside.
Turning to appellant No. 1, the Court evaluated the description of the still recovered from his premises. It observed that toddy production either required no still or only a simple heating process, and that the elaborate apparatus seized was not ordinarily employed for toddy. The Court therefore held that the still fell within the ambit of “apparatus ordinarily used for the manufacture of any intoxicant other than toddy,” satisfying the first prong of the test.
The Court further considered whether appellant No. 1 had been denied a chance to rebut the presumption. It noted that during his examination under section 342, appellant No. 1 voluntarily stated that he was unaware of the contraband. The Court held that this voluntary statement negated any claim of prejudice arising from the magistrate’s failure to put specific questions about the still, and therefore the presumption under section 103 was validly applied.
On the question of sentencing, the Court examined the nature of the offence and the statutory framework. It found that the nine‑month rigorous imprisonment and fine of Rs 1,000 were not unduly severe in the circumstances of the case and therefore upheld the sentence.
The Court also addressed evidentiary deficiencies identified by the High Court. It affirmed that the prosecution had not satisfactorily proved that the bottles and jars containing liquor had been sealed in the presence of the panchnama, nor that the samples examined by the chemical examiner corresponded to the seized containers. Accordingly, the convictions under sections 65(b) and 66(b) remained set aside.
Final Relief and Conclusion
The Supreme Court allowed the appeal of appellant No. 2, set aside his conviction under section 65(f) and the accompanying sentence, and dismissed the appeal of appellant No. 1. It upheld appellant No. 1’s conviction under section 65(f) read with section 81 and maintained the sentence of nine months’ rigorous imprisonment and a fine of Rs 1,000, finding it not unduly severe.
The judgment established that the statutory presumption in section 103 operates only when the accused is in possession of a still or apparatus that is ordinarily used for the manufacture of an intoxicant other than toddy, and that the presumption cannot be applied to a servant or employee who does not possess the apparatus. It also confirmed that the presumption may be invoked without prejudice where the accused, having been examined under section 342, voluntarily acknowledges ignorance of the seized contraband.