# KEKI BEJONJI AND ANOTHER v. THE STATE OF BOMBAY

- **Citation:** [1961] 2 S.C.R. 515
- **Court:** Supreme Court of India
- **Decided:** 1959-03-17
- **Case number:** Criminal The s~~le of Appeal No. 124 of 1959
- **Bench:** Jafer Imam, K. Subba Rao, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/keki-bejonji-and-another-v-the-state-of-bombay-1976
- **Pages:** 8

## Headnote

Criminal Trial-Search-Recovery of articles-Denial of -all
knowledge of articles recovered-No questions put on articles recovered-accused, if prejudiced-Presumption-Servant in premises
of master-Whether in possession of master's goods-·Code of Criminal Procedure, z898_(V of I898), s. 34z-Bombay Prohibition Act,
I949 (Bom. z5 of z949), ss. 65(b), 65(f), 66(b).
During the search of the premises of the appellant No. I
a complete working still was found which was being worked by
the appellant No. I and his servant, appellant No. 2. The
Presidency Magistrate was satisfied that a working still and
November z8.
516
SUPREME COURT REPORTS
[1961]
I960
illicit liquor were found.
The appellant No. l was examined
under section 342 of the Code of Criminal Procedure, he volunKeki Bcjonji and teered the statement that he did not know anything of the conAnother
traband seized by the police; so no specific question about the
v.
still and other articles recovered from his premises were put by
Th• Stats of
the Presidency Magistrate who convicted the appellants under
Bombay
ss. 65(b), 65(1) & 66(b) of the Bombay Prohibition Act, relying
on the facts of the recovery of still and illicit liquor and did not
use the provision of s. 103 for presumption against the appellants.
The appellants on appeal by special leave contended, (1)
that no presumption under s. 103 of the Act could arise; and
that he had been denied the opportunity to rebut the presumption under s. 103 of the Act, as no questions were put to them
when they were examined nnder s. 342 of the Code of Criminal
Procedure (3) that as the Magistrate had not nsed the provision
of s. 103 for presumption against the appellants, the High Court
ought not to have convicted the appellants on the presumption
arising under s. 103 of the Act without giving them an opportunity to rebut the same.
On behalf of appellant No. 2 it was further urged that he
was merely a servant of appellant No. l; if any one was in
possession of the still it was appellant No. l and no presumption against him could arise under s. 103 of the Act.
Held, that when an accused is examined under s. 342 of the
Code of Criminal Procedure and volunteers statement denying
all knowledge of articles recovered from his possession, no prejudice is caused to him if no further questions are put to explain the possession of articles found in the premises occupied
by him.
The presumption which arises under s. 103 of the Bombay
Prohibition Act is that an offence under the Act is committed
when a person is found in mere possession, without further eVidence, of any still, utensil, implement or apparatus whatsoever
for the manufacture of such intoxicant until contrary is proved.
Thus no prejudice was caused to the appellant No. l when the
High Court relied upon the presumption arising nnder s. 103
of the Act to uphold his conviction under s. 65(f) of the Act.
Held, further, that it cannot be said of merely an employee
in the premises that he was in physical possession of the things
belonging to his master unless they were left in his custody.
Where an offence under s. 65(1) of the Bombay Prohibition
Act has not been established beyond reasonable doubt and the
possession of still does not amount to an offence under the sec.-
lion no presumption could arise under s. IOJ of the Act against
a person that he was in possession of the still for which he could
not account satisfactorily.
In the instant case the still being in the possession of the
master and there being no evidence that the employee in any
2 S.C.R. SUPREME COURT REPORTS
517
way aided his master to come into possession of the still, it
x960
could not be said that.the appellant No. z was in such posses-
-
sion of the still as would amount to an offence under s. 65(£) of Keki Bejonji and
the Act.
Another
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
The s~~le of
Appeal No. 124 of 1959.
Bombay
Appeal by special leave from the judgment and
order dated June 19 and 20, 1959, of the former Bombay High

## Text

2 S.C.R. SUPREME COURT REPORTS
515
heard. From that point of view the provisions of
r96o
s. 421 had not been complied with. It is sufficient to
Pratap Singh
say that if the order dated Octobe.r 28, 1955, dismisv.
sing the appellant's appeal under s. 420 was lawful,
The State of
a second appeal from the same judgment of convic- Vindhya Pradesh
tion presented through a pleader was not maintain-
(Now Madhya
able because the previous order of the High Court
Pradesh)
dismissing the appeal was final under s. 430 of the
Imam J.
Code of Criminal Procedure.
Certain cases were
relied upon to which reference has been made by the
Judicial Commissioner. Those cases can be distinguished from the present case. In none of them was
it decided that where an order dismissing the appeal
is lawful a subsequent appeal filed through a pleader
was maintainable. In our opinion, there is no substance in this point, once it is held that the order
dated October 28, 1955, was a lawful order which, we
think, it was, as in our opinion the proviso to s. 421
in no way offends against the provisions of Art. 14
of the Constitution. The appeal is accordingly dismissed.
Appeal dismissed.
KEKI BEJONJI AND ANOTHER
v.
THE STATE OF BOMBAY.
(JAFER IMAM, K. SUBBA RAO and
RAGHUBAR DAYAL, JJ.)
Criminal Trial-Search-Recovery of articles-Denial of -all
knowledge of articles recovered-No questions put on articles recovered-accused, if prejudiced-Presumption-Servant in premises
of master-Whether in possession of master's goods-·Code of Criminal Procedure, z898_(V of I898), s. 34z-Bombay Prohibition Act,
I949 (Bom. z5 of z949), ss. 65(b), 65(f), 66(b).
During the search of the premises of the appellant No. I
a complete working still was found which was being worked by
the appellant No. I and his servant, appellant No. 2. The
Presidency Magistrate was satisfied that a working still and
November z8.
516
SUPREME COURT REPORTS
[1961]
I960
illicit liquor were found.
The appellant No. l was examined
under section 342 of the Code of Criminal Procedure, he volunKeki Bcjonji and teered the statement that he did not know anything of the conAnother
traband seized by the police; so no specific question about the
v.
still and other articles recovered from his premises were put by
Th• Stats of
the Presidency Magistrate who convicted the appellants under
Bombay
ss. 65(b), 65(1) & 66(b) of the Bombay Prohibition Act, relying
on the facts of the recovery of still and illicit liquor and did not
use the provision of s. 103 for presumption against the appellants.
The appellants on appeal by special leave contended, (1)
that no presumption under s. 103 of the Act could arise; and
that he had been denied the opportunity to rebut the presumption under s. 103 of the Act, as no questions were put to them
when they were examined nnder s. 342 of the Code of Criminal
Procedure (3) that as the Magistrate had not nsed the provision
of s. 103 for presumption against the appellants, the High Court
ought not to have convicted the appellants on the presumption
arising under s. 103 of the Act without giving them an opportunity to rebut the same.
On behalf of appellant No. 2 it was further urged that he
was merely a servant of appellant No. l; if any one was in
possession of the still it was appellant No. l and no presumption against him could arise under s. 103 of the Act.
Held, that when an accused is examined under s. 342 of the
Code of Criminal Procedure and volunteers statement denying
all knowledge of articles recovered from his possession, no prejudice is caused to him if no further questions are put to explain the possession of articles found in the premises occupied
by him.
The presumption which arises under s. 103 of the Bombay
Prohibition Act is that an offence under the Act is committed
when a person is found in mere possession, without further eVidence, of any still, utensil, implement or apparatus whatsoever
for the manufacture of such intoxicant until contrary is proved.
Thus no prejudice was caused to the appellant No. l when the
High Court relied upon the presumption arising nnder s. 103
of the Act to uphold his conviction under s. 65(f) of the Act.
Held, further, that it cannot be said of merely an employee
in the premises that he was in physical possession of the things
belonging to his master unless they were left in his custody.
Where an offence under s. 65(1) of the Bombay Prohibition
Act has not been established beyond reasonable doubt and the
possession of still does not amount to an offence under the sec.-
lion no presumption could arise under s. IOJ of the Act against
a person that he was in possession of the still for which he could
not account satisfactorily.
In the instant case the still being in the possession of the
master and there being no evidence that the employee in any
2 S.C.R. SUPREME COURT REPORTS
517
way aided his master to come into possession of the still, it
x960
could not be said that.the appellant No. z was in such posses-
-
sion of the still as would amount to an offence under s. 65(£) of Keki Bejonji and
the Act.
Another
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
The s~~le of
Appeal No. 124 of 1959.
Bombay
Appeal by special leave from the judgment and
order dated June 19 and 20, 1959, of the former Bombay High Court in Criminal Appeal No. 411 of 1959
arising out of the judgment and order dated March
17, 1959, of the Presidency Magistrate XX Court,
Mazagaon, Bombay in Case Nos. 1952-54/P of 1958.
B. M. Mistri, Ravinder Narain, S. N. Andley, J. B.
Dadachanji, Rameskwar N atk and P. L. Vokra for the
Appellants.
N ur-"ud-din Ahmed and R. H. Dkebar, for the Respondent.
1960. November 18. The Judgment of the Court
was delivered by
l:MAM, J.-The appellants were convicted under
Tmam J.
ss. 65(b), 65(f) and 66(b) of the Bombay Prohibition
Act of 1949, hereinafter referred to as the Act, by the
Presidency Magistrate XX Court, Maza.ga.on, Bombay.
The appellant No. 1 was sentenced to 9 months' rigorous imprison~ent and a fine of Rs. 1,000 under
s. 65(b ). No separate sentence was ~mposed under the
other sections. Appellant No. 2 was sentenced to 6
months' rigorous imprisonment and fine of Rs. 500
under· s. 65(b ).
No separate sentence was imposed
under the other sections. They appealed to the Bom1 bay High Court against their convictions and sentence.~The High Court set a.side their convictions under
ss. 65(b) and 66(b) of the Act but maintained their
conviction under s. 65(f) read withs. 81 relying on the
presumption against the appellants arising· out of
s. 103 of the Act. The High Court accordingly directed that the sentence of imprisonment and fine imposed
upon the appellants by the Presidency Magistrate
under s. 65(b) be regarded as the sentence of imprisonment and fine imposed on the appellants under s. 65(f)
read with s. 81.
66
Keki Bejonji and
Another
v.
The State of
Bombay
Imam].
518
SUPREME COURT REPORTS
[1961]
According to the case of the prosecution, there was
a search on August 2, 1958, of certain premises in the
occupation of appellant No. I on the third floor of
Dhun Mansion, Khetwadi 12th Lane. A complete
working still was found there and both the appellants
were working it. Appellant No. 2 was pumping air
into the cylinder with a motor pump while appellant
No. I was holding a rubber tube attached to the tank.
An iron stand with a boiler on it was also found there.
Below the boiler there was a stove which was burning.
There was also a big jar near the still. According to
the prosecution, this big jar contained illicit liquor.
Another glass jar was used as a receiver which, according to the prosecution, also contained 20 drams of
illicit liquor. The, boiler contained four gallons of
wash. There were also 11 wooden barrels containing
wash. In the drawing room of the premises a small
glass jar containing 20 drams of illicit liquor, a bottle
of Ii drams of illicit liquor and a pint bottle containing 3 drams of illicit liquor were also found. A panchnama was drawn up concerning the recovery of
these articles. It was the case of the prosecution that
the appellants were manufacturing illicit liquor and
were in possession of a still and other materials for
the purpose of manufacturing intoxicant and were
also in possession of illicit liquor.
The Presidency Magistrate was satisfied that a
working still and illicit liquor in the glass jars and the
two bottles were found in the premises in question.
The High Court also was of the opinion that a working still was found there but it thought that it would
not be safe to rely upon the conflicting and unsatisfactory evidence in the case to hold that illicit liquor
had been found in the premises in question, as it had
not been satisfactorily proved that the bottles and the
glass jars had been sealed in the presence of the panchas.
The High Court was further of the opinion that there
was no evidence on the record to show that the very
bottles which were attached and the sample bottles in
which was contained the wash were the bottles which
were examined by the Chemical Examiner in respect
2 s.c.R. SUPREME COURT REPORTS
519
of which he ma.de a. report to the Magistrate. Accordc96o
ingly, it was of the opinion that the convictions under K k. B-.- ..
tl
ss. 65(b) and 66(b) could not stand.
e 'An":t~:~· an
On behalf of the appellants it was urged that no
v.
presumption under s. 103 of the Act ci;mld airise as it
The State of
had not been established, on the findings of the High
Bombay
Court, that the still was an apparatus for the manufacture of any intoxicant as is o;dinarily used in the
manufacture of any intoxicant. It was further argued
that no questions were put to the accused, when they
were examined under s .. 342 of the Code of Criminal
Procedure, in this connection and therefore they had
been denied the opportunity to rebut the presumption.
The Presidency Magistrate had not used the provisions
of s. 103 against the appellants because he had found
that in fact illicit liquor had been recovered from the
premises and that the· still was for manufacturing such
intoxicant. If the Presidency Magistrate had at all
intended to use the presumption under s. 103 against
the appellants, he was bound to have given them an
opportunity to rebut it. If at the appellate stage the
High Court was of the opinion that it had not been
established that any illicit liquor had been recovered
as a ~esult of the search, then it ought not to have
convicted the appellants on the presumption arising
under s. 103 without giving the appellants an opportunity to rebut the same. In this case the offence
under s. 65(f) would be the using, keeping or having
in possession a still or apparatus for the purpose of
manufacturing any intoxicant other than toddy. It
was not established by the evidence that the still or
apparatus recovered from the premises occupied by
appellant No. 1 was one which is not ordinarily used
for the manufacture of toddy.
It was further urged on behalf of appellant No. 2
that he could not be convicted either for being in
possession of the still or under s. 65(£) read with s. 81,
that is to say, abetment of an offence under s. 65(f) of
the Act. This appellant was merely . a servant of
appellant No. 1. If any one was in possessiqn of the
still it was appellant No. 1. There was also no evidence to show that appella.nt No. 2 had abetted
Imam J.
520
SUPREME COURT REPORTS
[1961]
r960
appellant No. I in coming into possession of the
K k" ~
..
d still. Appellant No. 2 was merely using the pump,
• •A:!:;;; an presumably under the orders of his master, and as he
v.
could not be said to be in possession of the still, no
Th• State of
presumption against this appellant could arise under
Bombay
s. 103 of the Act.
Imam].
We would deal with the case of appellant No. 2
first.
There is no evidence that he in any way aided
his master to come into possession of the still. It would
be reasonable to suppose that when he was using the
pump he was doing so on the orders of his master and
he may not have been aware of what was being manu-
~actured, whatever suspicion may arise from his conduct. It cannot also be said that he was in possession
of the still. The still was in the possession of his
master. He was merely an employee in the premises
and cannot be said to be in physical possession of
things belonging to his master unless they were left
in his custody. It seems to us that whatever suspicion there may be against the appellant No. 2 it
cannot be said that it has been established beyond
reasonable doubt that he was in such possession of the
still as would amount to an offence under s. 65(f) of
the Act. In the circumstances, no presumption could
arise under s. 103 against him that he was in possession of the still for which he could not account satisfactorily. We would accordingly allow the appeal
of appellant No. 2 and set aside his conviction and
sentence.
So far as the appellant No. I is concerned, there can
be no question that he was found in possession of a
still which, having regard to the nature of the still as
disclosed by the evidence, is ordinarily US!Jd for the
manufacture of an intoxicant such as liquor. Having
regard to the description of the still, as found on the
record, we are satisfied that the still in question is not
ordinarily used for the manufacture of toddy. Indeed,
it is doubtful that any still is required for the manufacture of toddy because toddy is either fermented or
not. If the toddy is unfermented the need for a still
is unnecessary. On the other hand, if the toddy is
fermented, the process of fermentation is a natural
-
'
·-I
2 S.C.R. SUPREME COURT REPORTS
521
one and does not require the aid of any apparatus to
1960
ferment it. It was said, however, that by heating the K k' B--:- ..
4
toddy, a higher degree of fermentation takes place and
e 'An~1:;,• an
it becomes more potent. We have, however, no eviv.
dence on the record as to this. Even if we assume
The State of
that toddy, when heated, becomes highly fe.Tmented
Bombay
and therefore more potent, there is nothing to show
that the heating process to achieve this required
Imam l·
an elaborate still of the kind found in the premises of
appellant No. l.
It was, however, pointed out that no questions
were put to the appellant in order· to give him an
opportunity to rebut the presumption arising out of
s. 103 of the Act. It is, however, to be remembered
that when the appellant was examined under s. 342
of the Code of Criminal Procedure he had' volunteered
the statement that he did not know about the various
contrabands seized by the police. Since this was his
attitude in the matter, it is difficult to understand
what further questions could have been put to him to
explain the possession of the still and the various other
articles found in the premises occupied by him. It is
not possible to say in this particular case that this
appellant had been prejudiced by the failure of the
Magistrate to put to him any specific questions about
the still and the other articles found in the premises
occupied by him.
The presumption which arises under s. 103 of the
Act is that an offence under the Act is committed
where a person is found in mere possession, without
further evidence, of any still, utensil, implement or
apparatus whatsoever for the manufacture of any
intoxicant as are ordinarily used in the manufacture
of such intoxicant until the contrary is proved. It
is difficult to conceive that the appellant could have
given any satisfactory evidence to establish that the
still and other articles found in the premises . occupied·
by him could ordinarily be used for the manufacture
of toddy.
We are accordingly satisfied that there
was no prejudice caused to the appellant, in the
circumstances of the present case, when the High
Court relied upon the presumption arising under s. 103
522
SUPREME COURT REPORTS
[1961]
to uphold his conviction under s. 65(£) of the Act.
Keki Bejonji at1d
.Another
It was finally urged that the sentence should be
reduced. In our opinion, the sentence imposed cannot
be said to be unduly severe having regard to the provisions of the Act.
v.
The Stale of
Bombay
Accordingly, the appeal of appellant No. 2 is allowed and his conviction and sentence are set aside but
the appeal of appellant No. I is dismissed.
Imam ].
z960
November 2 r.
Appeal disposed of acrordingly.
M/S. DAMODAR VALLEY CORPORATION
v.
THE STATE OF BIHAR
(B. P. SINHA, c. J., s. J. IMAM, A. K. SARKAR,
K. SuBBA RAO and J.C. SHAH, JJ.)
Sales Ta%-Liabi!ity-Agreement to supply equipment and
macl1inery to contractor-If a sale or hire-Test-Bihar Sales Tax
Act, I947 (I9 of z947) s. z(g), z3(5), z5.
The appellant Corporation was assessed to sales tax under
s. 13(5) of the Bihar Sales Tax Act, 1947, on the price of machi-
• nery and equipment, amounting approximately to Rs. 42,63,305,
supplied to two contractor firms on the basis of an agreement
which it entered into with them for the construction of a dam.
The agreement provided, inter alia, that the price of the
machinery and equipment supplied was to be paid by the contractors and until that was done they were to remain the property of the Corporation. It was further agreed that the Corporation would take them over after the completion of the
work at their residual value, to be calculated in the manner set
out in the agreement, provided· that they were properly looked
after during the period of operation; and if the contractors so
chose earlier, if they were declared surplus and certified as
such by the consulting Engineer. The price was to be paid in
18 equal instalments, two-thirds of which was realisable in any
case, and thereafter the Corporation was to consider the date or
dates of taking them over after assessment of the depreciation
in order to arrive at the residual value. The Corporation was
not bound to take over if the residual life of the equipment fell
below one-third of the standard life as fixed by the parties.