# PATEL JETHABHAI CHATUR v. STATE OF GUJARAT

- **Citation:** [1977] 1 S.C.R. 872
- **Court:** Supreme Court of India
- **Decided:** 1976-10-20
- **Case number:** Criminal Appeal No. 385 of 1976
- **Bench:** P. N. Bhagwati, S. Murtaza Fazal Ali
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/patel-jethabhai-chatur-v-state-of-gujarat-6987
- **Pages:** 6

## Headnote

Appeal against acquittal of an offence of consuming liquor-Merely because
the High Court took the view that a further charge of "possessi011eof liquor"·
should have been framed, setting aside of the acquittal without finding whether
the order of acquittal wa,, erroneous and ordering re-trial is bad-Bombay Prohibition Act, 1949 (Bom. XXV) sec. 66(1 )(b) r!w sec. 378 Criminal Procedure
Code (Act fl 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 fl of 1974), 1973-secs. 386(a), 464 (!)and 464(2)(a).
Practice-Supreme Court will not entertain a complaint on facts and interfere with a finding of fact by Jhe appellate Court under Article 136 of the Constitution of India.
Possession-"Possession" to attract criminal liability
must
be
"conscious
possession".
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, Kodinar, 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 af possessing liquor. In 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 Prohibition (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 statutory 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) Jn 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 wa~ 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
acquittal 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,
in the exercise of its jurisdiction set right the error committed by the trial court
in not framing a proper charge. [876 G_H]
PATEL JETHABHAI CHATUR v. GUJARAT (Bhagwati, J.)
8 7 3
(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 Bl
(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 andi circumstance of each case. [877 DJ

## Text

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PATEL JETHABHAI CHATUR
v.
STATE OF GUJARAT
October 20, 1976
[P. N. BHAGWATI AND S. MURTAZA FAZAL ALI, JJ.]
Appeal against acquittal of an offence of consuming liquor-Merely because
the High Court took the view that a further charge of "possessi011eof liquor"·
should have been framed, setting aside of the acquittal without finding whether
the order of acquittal wa,, erroneous and ordering re-trial is bad-Bombay Prohibition Act, 1949 (Bom. XXV) sec. 66(1 )(b) r!w sec. 378 Criminal Procedure
Code (Act fl 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 fl of 1974), 1973-secs. 386(a), 464 (!)and 464(2)(a).
Practice-Supreme Court will not entertain a complaint on facts and interfere with a finding of fact by Jhe appellate Court under Article 136 of the Constitution of India.
Possession-"Possession" to attract criminal liability
must
be
"conscious
possession".
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, Kodinar, 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 af possessing liquor. In 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 Prohibition (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 statutory 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) Jn 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 wa~ 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
acquittal 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,
in the exercise of its jurisdiction set right the error committed by the trial court
in not framing a proper charge. [876 G_H]
PATEL JETHABHAI CHATUR v. GUJARAT (Bhagwati, J.)
8 7 3
(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 Bl
(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 andi circumstance of each case. [877 DJ
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 th~ offence 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 material 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 participate 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 th~ 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 containing liquor and these articles were seized by the raiding party in the presence of the panch
witnesses and the panchnama 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
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:874
SUPREME COURT REPORTS
[1977] 1 S.C.R.
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 accused, 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 ~ection
66(1) (b). of the Act.
The learned Judicial Magistrate accepted the
evidence in regard to the concentration of alcohol in the bloo~ of the
accused, but taking the . view that breaches of certain rules in the
Bombay Prohibition (Medical Examination and Blood Test) Rules,
1959 were committed in taking the blood of the accused, the learned
Judicial Magistrate aequitted 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 doubf that he was in
possession 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 an<l 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 accused No. 1
for the offence of possessing liquor was correct or incorrect.
But,
taking the view that there was no distinction 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
concerned, the High Court held that, on the material on record, the
learned Judicial Magistrate should have framed 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 detected•by the police,
it is the imperative duty of the prosecution to allege that all
the participants 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
PATEL JETHABHAI CHATUR v. GUJARAT (Bhagwati, J.)
875
"Drinking Parties", the Court must be satisfied 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, gathered together go to a distant farm
house ? Why should they be found with the aforesaid articles ? Why should they create a situation 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 responsible
oflfcers for Amreli ?
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I~ such circumstances, it is the duty of the prosecution
to see that all the participants are charged with the commis·
sion of the offence viz. of possessing liquor in contravention
of the provisions contained in Sec. 66(1) (b) of the B'bay
Prohibition Act, 1949."
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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 accus_ed not only on the charge of consuming liquor
but also on the further charge of possession of liquor.
Accused Nos.
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1 and 3 to 8 did not challenge the correctness of this order made by
the High Court, but the appellant impugned it by preferring the present appeal with special leave obtained from this Court.
The impugned Order made by the High Court consists of two
paits.
One part set aside the order of acquittal and directed retrial
of the appellant on the charge of consuming liquor while the other E
directed that the appellant and accused Nos. 3 to -g- 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
support of the appeal was a two-fold one.
The first limb of the contention was that the order setting aside the acquittal 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
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High Court· in appeal to set aside the order of acquittal and direct
retrial, unless it found that the acquittal was wrong.
Here in the
present case, the High Court did not even consider wfiether the acquittal of the appellant was correct or not and without finding that the
acquittal was erroneous, proceeded 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
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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
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whether the acquittal of the appellant for the offence of consuming
liquor was_ right or wrong and it was not competent to the High Court
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[ 1977] 1 S.C.R •
to frame a new charge for possession of liquor and direct trial of the
appellant and the oth~r accused on such new charge.
These were the
twin grounds on which the order made by the High Court was challenged on behalf of the appellant.
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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 manifestl:i:, in this
appeal, the acquittal could not be set aside unless the High Court,
on a consideration of the evidence, came to the conclusion that the
acquittal was wrong.
It was not competent to the High <;ourt 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
puJPose 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,
therefore, quash that part of the order of the High Court which set
aside the ac;quittal 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.
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
cha;ge 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 appellant and accused
Nos. 3 to 8 on such further charge.
The High Court could legitimately in the exercise of its jurisdiction, set right the error committed bv
the learned Judicial Magistrate in not framing a proper charge. Here,
the High Court, on a consideration of the material. which wa~ before
the learned Judicial Magistrate, came to the conclusion that this material warranted the framino- 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
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PATEL JETHABHAI CHATUR v. GUJARAT (Bhagwati, J.)
877
such further charge.
The High Court clearly had jurisdiction 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 possesison 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 jurisdiction under Article 136 of
the Constitution, entertain such a complaint. It is true that there
are certain observations made by the High Court which are a little too
wide but9it cannot be gainsaid 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 ha! 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 actually in possession
of it. Possession again must be distinguished 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 cannot, .
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 possession of liquor or not must depend on the facts and
circumstances of each case.
Here in the present case, the prosecution
will have to establish at the trial by leading satisfactory 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 directing trial of the appellant and the other accused for
the
offence of possession of liquor must, therefore, be maintained, 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 Higli 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 directiilj!
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.
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