PETITIONER:
PATEL JETHABHAI CHATUR
Vs.
RESPONDENT:
STATE OF GUJARAT
DATE OF JUDGMENT20/10/1976
BENCH:
BHAGWATI, P.N.
FAZALALI, SYED MURTAZA
CITATION:
1977 AIR 294 1977 SCR (1) 872
1976 SCC (4) 522
ACT
Appeal against acquittal of an offence of consuming
liquor--Merely because the High Court took the view that a
further charge of "possession of liquor" should have been
framed, setting aside of the acquittal without finding
whether the order of acquittal was erroneous and ordering
retrial is bad--Bombay Prohibition Act, 1949 (Bom. XXV) sec.
66(1)(b) r/w sec. 378 Criminal Procedure Code (Act II of
74), 1973.
Charge-Fresh charge on appreciation of evidence can be
ordered to be framed by the High Court in exercise of its
appellate jurisdiction--Criminal Procedure Code (Act II of
1974), 1973--secs. 386(a), 464 (1) and 464(2)(a).
Practice--Supreme Court will not entertain a complaint
on facts and interfere with a finding of fact by the appel-
late Court under Article 136 of the Constitution of India.
Possession--"Possession" to attract criminal liability
must be "conscious possession".
HEADNOTE
Section 66(1)(b) of the Bombay Prohibition Act 1949
makes any person liable for punishment on conviction for
the offence of "consuming, using, possessing or transporting
any intoxicant or hemp." Section 66(2)(b) prescribes a
statutory limit of 0.05 percentage of alcohol in the veinous
blood taken from the accused. In summary case Nos. 798 and
799 of 1972 before the Judicial Magistrate 1st Class, Kodi-
nar, Gujarat State, the appellant/accused No. 2 along with
six others was charged with consumption of liquor while
accused No. 1, the owner of an agricultural farm, where a
drinking party took place was charged with the offence of
possessing liquor. h spite of the fact that the percentage
of alcohol present in the veinous blood taken from the body
of accused No. 2 was more than the statutory limit, in view.
of. breaches of certain statutory rules, in Bombay Prohibi-
tion (Medical Examination and Blood Test) Rules, 1959, the
appellant/accused No. 2 was acquitted along with accused 3
to 8 in whose cases the percentage was less than the statu-
tory limit. Accused No. 1 was also acquitted for lack of
evidence on the charge of possession of liquor. In the State
appeal, taking the view that in a drinking party there
should always be a further charge of possession of liquor,
the High Court without examining the correctness of the
findings of fact leading to the acquittals, set aside the
orders of acquittal in respect of all and ’ordered retrial.
On appeal by special leave, the Court,
HELD: (i) In a State appeal against acquittal, the
acquittal should not be set aside unless the High Court on a
consideration of the evidence. comes to the. conclusion that
the acquittal was wrong. In the instant case, the High
Court did not even consider whether the acquittal of the
appellant was correct or not and without finding that the
acquittal was erroneous proceeded to set aside the. acquit-
tal and direct retrial. It ’was not competent to the High
Court to set aside the acquittal without finding that it was
erroneous. Setting aside the acquittal order and ordering
retrial merely because. it took the view that a further
charge should have been framed against the appellant and
accused No. 3 to 8 was plainly and indubitably wrong. [876
B-D]
(ii) If while hearing an appeal, the High Court, finds
that, on the material before it, a further charge should be
framed, the High Court can legitimately, the exercise of
its jurisdiction set right the error committed by the trial
court in not framing a proper charge. [876 G H]
873
(iii) In the exercise of extra-ordinary jurisdiction
under Article 136 of the Constitution, the Supreme Court
would not ordinarily entertain a complaint on facts. [877 B]
(iv) Possession is distinguishable from custody and it
must be conscious possession. Whether the accused is in
possession of liquor or not must depend on the facts and
circumstance of each case. [877 D]
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No, 385
of 1976.
(From the Judgment and Order dated 22-12-1975 of the
Gujarat High Court in Crl. Appeal No. 180/74)
N.N. Keswani & Ramesh N. Keswani for the appellant.
K.H. Kazi & M.N. Shroff for the Respondent.
The Judgment of the Court was delivered by
BHAGWATI, J. This appeal, by special leave, is directed
against an order passed by the High Court of Gujarat setting
aside the acquittal of the appellant and directing that he,
along with other accused, be retried not only for the of-
fence of consumption of liquor of which he was acquitted but
also for the offence of possession of liquor punishable
under section 66(1)(b) of the Bombay Prohibition Act, 1949.
The question arising for determination is a short one, but
in order to appreciate it, it is necessary to state the.
facts giving rise to the appeal.
The appellant, original accused No. 2, was at all mate-
rial times working as District Health Officer in District
Amreli in the State of Gujarat. He was, according to the
prosecution, found of liquor and whenever he used to go out
of Amreli in connection with his duties, he used to partici-
pate in drinking parties. On 3rd August, 1972, he visited
Kodinar, a town situate in the District of Amreli and late
in the evening of that day, he attended a drinking party
which was arranged by accused No. 1 in his agricultural farm
situate at a place called Ghantwad about 50 Kms. away from
Kodinar. Besides accused Nos. 1 and 2, six other persons
who were arraigned as accused Nos. 3 to 8 were also present
at the drinking party. On receiving information about the
drinking party, the District Magistrate and the District
Superintendent of Police along with other police officers
and panch witnesses raided the agricultural farm where the
drinking party was in progress. The raid was carried out at
about 00.30 hrs. after midnight and on seeing the police,
the appellant and the other accused tried to run away but
they were apprehended. The raiding party, also found five
glasses and two empty bottles, all smelling of liquor,
twelve empty soda water bottles and one full’ bottle con-
taining liquor and these articles were seized by the raiding
party in the presence of the panch witnesses and the panch-
nama was prepared. The appellant and the other accused were
thereafter taken to the Amreli hospital where their blood
was taken by the Civil Surgeon for the purpose of carrying
out
874
the necessary test for determining the presence of alcohol.
The analysis of the blood revealed that, in the case of the
appellant, the concentration of alcohol in the blood was
more than 0.05 per cent weight in volume while in the case
of the other accused, it was less than 0.05 per cent. On
these facts, the appellant and the other accused were
charge-sheeted before the Judicial Magistrate, Kodinar. The
charge against accused No. 1 was that he possessed as well
as consumed liquor in contravention of the provisions of the
Act and was, therefore, guilty of offences punishable under
section 66(1)(b), while the charge against the other ac-
cused, including the appellant, was that they were guilty of
consuming liquor in contravention of the provisions of the
Act and were hence liable to be punished for the offence
under section 66(1) (b) of the Act. The learned Judicial
Magistrate accepted the evidence in regard to the concentra-
tion of alcohol in the blood of the accused, but taking the
view that breaches of certain rules in the Bombay Prohibi-
tion (Medical Examination and Blood Test) Rules, 1959 were
committed in taking the blood of the accused, the learned
Judicial Magistrate acquitted the accused including the
appellant of the offence of consuming liquor under section
66 (1 ) (b). The learned Judicial Magistrate also acquitted
accused No. 1 of the offence of possessing liquor under
section 66(1)(b) on the ground that it was not proved by the
prosecution beyond reasonable doubt that he was in posses-
sion of liquor.
The State preferred two appeals against the order of
acquittal passed by the learned Judicial Magistrate. Both
the appeals were heard by a Single Judge of the High Court
any they were disposed of by a common judgment. The High
Court did not examine whether the order passed by the
learned Judicial Magistrate acquitting the appellant and the
other accused of the offence of consuming liquor was right
or wrong nor did it consider whether the acquittal of ac-
cused No. 1 for the offence of possessing liquor was correct
or incorrect. But, taking the view that there was no dis-
tinction between the case of accused No. 1 on the one hand
and that of the appellant and accused Nos. 3 to 8 on the
other so far as the charge of possession of liquor is con-
cerned, the High Court held that, on the material on record,
the learned Judicial Magistrate should have flamed a charge
against the appellant and accused Nos. 3 to 8 not only for
the offence of consuming liquor but also for the offence of
possession of liquor as in the case of accused No. 1. The
High Court observed:
"Whenever "Drinking Parties" are detect-
ed by the police, it is the imperative duty of
the prosecution to allege that all the partic-
ipants of the same are charged with the
"possession" of liquor in contravention of the
provisions of law contained in Sec. 66(1 )(b)
of the B’bay Prohibition Act, 1949. It may be
emphasised that in such cases, "possession" of
liquor does not only necessarily mean actual,
physical or conscious possession of the owner
or the occupant of the premises". In such
cases of "Drinking Parties", it is always open
to a participant to stretch his hand and to
take the liquor in question for his own use
and consumption. But, in all such cases of
875
"Drinking Parties", the Court must be satis-
fied that the attendant circumstances-should
clearly indicate that the accused persons are
the participants in a "Drinking Party". In
the case before me, why should the accused
persons, during the night hours, having gath-
ered together go to a distant farm house ?
Why should they be found with the aforesaid
articles ? -Why should they create a situa-
tion as a result of which a constable had to
jump over a wall ? Why should they try to run
away when they Were apprehended by the respon-
sible officers for Amreli ?
In such circumstances, it is the duty
of the prosecution to see that all the partic-
ipants are charged with the commission of the
offence viz. of possessing liquor in contra-
vention of the provisions contained in Sec.
66(1)(b) of the B’bay Prohibition Act, 1949."
The High Court, on this view, set aside the order of
acquittal in ’its entirety without examining its correctness
and remanded the case to the learned Judicial Magistrate
with a direction to try the appellant and the other accused
not only on the charge of consuming liquor but also on the
further charge of possession of liquor. Accused Nos. 1 and
3 to 8 did not challenge the correctness of this order made
by the High Court, but the appellant impugned it by prefer-
ring the present appeal with special leave obtained from
this Court.
The impugned Order made by the High Court consists of
two parts. One part set aside the order of acquittal and
directed retrial of the appellant on the charge of consuming
liquor while the other directed that the appellant and
accused Nos. 3 to 8’should also be tried on the further
charge of possession of liquor. The appellant attacked both
parts of the Order and the contention urged by him in sup-
port of the appeal was a two-fold one. The first limb of
the contention was that the order setting aside the acquit-
tal of the appellant for the offence of consuming liquor and
directing retrial of the appellant for that offence was
improper, since it was not competent to the High Court in
appeal to set aside the order of acquittal and direct retri-
al, unless it_found that the acquittal was wrong. Here in
the present case, the High Court did not even consider
whether the acquittal of the appellant was correct or not
and without finding that the acquittal was erroneous, pro-
ceeded to set aside the acquittal and direct retrial. This,
according to the appellant, was impermissible for the High
Court to ’do and it was said that the order setting aside
the acquittal must, therefore, be reversed and the acquittal
restored. The second limb of the contention related to that
part of the impugned order which directed that the appellant
and accused Nos. 3 to 8 should be retried not only on the
charge of consuming liquor but also on the further charge of
possession of liquor. The argument of the appellant under
this head of contention was that in the appeal, the High
Court was confined merely to a consideration of the question
whether the acquittal of the appellant for the offence of
consuming liquor was right or wrong and it was, not compe-
tent to the High Court
6--1338SCI/76
876
to frame a new charge for possession of liquor and direct
trial of the appellant and the other accused on such now
charge. These were the twin grounds on which the order made
by the High Court was challenged on behalf of the appellant.
Now, there can be no doubt that there is great force. in the
first part of’ the contention of the appellant. The learned
Judicial Magistrate acquitted the appellant of the offence
of consuming liquor. The State preferred an appeal against
the acquittal and manifestly, in this appeal, the acquittal
could not be set aside unless the High Court, on a consider-
ation of the evidence, came to the conclusion that the
acquittal was wrong. It was not competent to the High Court
to set aside the acquittal without finding that it was
erroneous. The High Court, however, did not even care to
examine whether the acquittal was right or wrong, but merely
because it took the view that a further charge should have
been framed against the appellant and accused Nos. 3 to 8,
it set aside the acquittal and directed retrial of the
appellant and the other accused. This was plainly and
indubitably wrong and the: order setting aside the acquittal
must, therefore, be quashed. But from that it does not
necessarily follow that the acquittal must be restored. The
High Court having failed to consider the merits of the
acquittal,. the matter would have to go back to the High
Court for the purpose of deciding whether on the evidence on
record, the acquittal was justified or not. The appeal
being directed against the correctness of the acquittal, the
High Court would have to determine whether on merits, the
acquittal should be maintained or reversed. We must, there-
fore, quash that part of the order of the High Court which
set aside the acquittal of the appellant for the offence of
consuming liquor and remand’ the case to the High Court for
disposing of the appeal against the acquittal of the appel-
lant on merits.
That takes us to the second limb of the contention
directed against the order of retrial on the further charge
of possession of liquor. It is true that originally when the
case was tried before the learned Judicial Magistrate, there
was no charge against the appellant and accused Nos. 3 to 8
for the offence of consuming liquor and the appeal of the
State was also directed ’only against their acquittal for
,the offence of consuming liquor. But there can be no doubt
that if, while hearing the appeal, the High Court found
that, on the material before .him, the learned Judicial
Magistrate should have framed a further charge against the
appellant and accused Nos. 3 to 8 but he failed to do so,
the High Court could certainly direct the learned Judicial
Magistrate to frame such further charge and try the appel-
lant and accused Nos. 3 to 8 on such further charge. The
High Court could legitimately in the exercise of its juris-
diction, set right the error committed by the learned Judi-
cial Magistrate in not flaming a proper charge. Here, the
High Court, on a consideration of the material which was
before the learned Judicial Magistrate, came to the conclu-
sion that this material warranted the framing of a further
charge against the appellant and accused Nos. 3 to 8 for
possession of liquor and it, therefore, directed that the
case should go back to the learned judicial Magistrate and
he should try the appellant and accused Nos. 3 to 8 on
877
such further charge. The High Court clearly had jurisdic-
tion to make such an order. But then, the complaint made on
behalf of the appellant was that the material before the
learned Judicial Magistrate did not justify the framing of a
charge against the appellant and accused Nos. 3 to 8 for
possession of liquor and hence the order directing their
trial on such further charge was not justified. This is,
however, a complaint on facts and we do not see any reason
why we should, in the exercise of our extra-ordinary juris-
diction under Article 136 of the Constitution, entertain
such a complaint. It is true that there are certain obser-
vations made by the High Court which are a little too wide
but it cannot be gained that even a person who participates
in a drinking party can in conceivable cases be guilty of
the offence of possession of liquor. Suppose a person is
found at a drinking party and he has a glass with him with
liquor in it at the time when the raid is carried out, would
it not be correct to say that he was at the relevant time in
possession of liquor ? The liquor in his glass would be
liquor in his possession. But at the same time it would not
be correct to say that merely because a participant in a
drinking party can stretch his hand and take liquor-for his
use and consumption, he can be held to be in possession of
liquor. The question is not whether a participant in a
drinking party can place himself in possession of liquor by
stretching his hand and taking it but whether he is actu-
ally in possession of it. Possession again must be distin-
guished from custody and it must be conscious possession.
If, for example, a bottle liquor is kept by. some one in the
car or house of a person without his knowledge, he cannot be
said to be in possession of the bottle of liquor. It can-
not, therefore, be laid down as an absolute proposition that
whoever is present at a drinking party must necessarily be
guilty of the offence of possession of liquor and must be
charged for such offence. Whether an accused is in posses-
sion of liquor or not must depend on the facts and circum-
stances of each case. Here in the present case, the prose-
cution will have to establish at the trial by leading satis-
factory evidence that the appellant and the other accused
were in possession of liquor as else the prosecution on the
charge of possession of liquor will fail. The order direct-
ing trial of the appellant and the other accused for the
offence of possession of liquor must, therefore, be main-
tained, but we think it would be desirable if this trial is
taken up after the disposal of appeal by the High Court in
regard to the acquittal of the appellant for the offence of
consuming liquor.
We accordingly allow the appeal in part and reverse that
part of the ’order of the High Court which set aside the
acquittal of the appellant for the offence of consuming
liquor and remand the case to the High Court for disposing
of the appeal against the acquittal of the appellant on
merits, but so far as the other part of the order directing
trial of the appellant and the other accused on the charge
of possession of liquor is concerned, we do not see any
reason to interfere with the same and we accordingly reject
the appeal in so far as it is directed against that part of
the order.
S.R. Appeal partly
allowed.