# STATE OF GUJARAT v. CHJNUBHAI GOPALDAS

- **Citation:** [1968] 3 S.C.R. 447
- **Court:** Supreme Court of India
- **Decided:** 1968-03-13
- **Case number:** Criminal Appeal No. 162 of 1965
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-gujarat-v-chjnubhai-gopaldas-4425
- **Pages:** 3

## Headnote

A
STATE OF GUJARAT
v.
CHJNUBHAI GOPALDAS
March 13, 1968
B
[M. HIDAYATULLAH, C.J., C. A. VAIDIALINGAM AND
c
D
E
F
A. N. GROVER, JJ.]
Bombay Prohibition Act, ss. 66(b) and 98-Acquittal of person
charged with offence under s. 66( b )-Properly in respect of which
offeirce committed may still be confisccted under s. 98.
A stock of bottles apparently containin~ cosmetic preparations was
iound from the possession of the respondent On analysis
the bottles
which were taken as samples were found to eo'htain alcohol and as the
respondent did not have any licence for possessiitg alcohol he was prollOCUled under s. 66(b) of the Bombay Prohibition Act. The trying Magistrate acquitted him on the ground that he did not hold the bottles on his
own but only as the agent of a wholesale dealer who acknowledged his
ownership.
While acquitting the respondent the Magistrate ordered the
confiscation of the remaining bottles under s. 98 of the Prohibition Act.
The respondent went to the High Court against the order of confiscation.
The learned Single Judge ordered return of the bottles because according
to him it was not proved that the 1500 and odd other bottles also contained intoxicants. and therefore the order under s. 98 of the Act y:as
illegal.
The State appealed,
HELD : U oder s. 98 what has to be seen is whether an offence under
the Prohibition Act in respect of the property in que5tion has been com·
milted or no~ An offence may be demonstrated to ·be committed
although the accused who committed it may not be successfully prosecuted.
On proof that there is a contraband artic1e in respect of which an
offence has been committed the obvious course is to confiscate it to tbc
State.
Therefore in the prcsont case if the court was satisfied that lhe
bottles contained contraband article the bottles could be confiscated.
[449 C-EJ
.
[Order of the High Court set aside \\ith the direction that a
few
bottles at random should be analysed and if contraband stuff against the
prohibition act was found the whole stock should be confiscated.]

## Text

A
STATE OF GUJARAT
v.
CHJNUBHAI GOPALDAS
March 13, 1968
B
[M. HIDAYATULLAH, C.J., C. A. VAIDIALINGAM AND
c
D
E
F
A. N. GROVER, JJ.]
Bombay Prohibition Act, ss. 66(b) and 98-Acquittal of person
charged with offence under s. 66( b )-Properly in respect of which
offeirce committed may still be confisccted under s. 98.
A stock of bottles apparently containin~ cosmetic preparations was
iound from the possession of the respondent On analysis
the bottles
which were taken as samples were found to eo'htain alcohol and as the
respondent did not have any licence for possessiitg alcohol he was prollOCUled under s. 66(b) of the Bombay Prohibition Act. The trying Magistrate acquitted him on the ground that he did not hold the bottles on his
own but only as the agent of a wholesale dealer who acknowledged his
ownership.
While acquitting the respondent the Magistrate ordered the
confiscation of the remaining bottles under s. 98 of the Prohibition Act.
The respondent went to the High Court against the order of confiscation.
The learned Single Judge ordered return of the bottles because according
to him it was not proved that the 1500 and odd other bottles also contained intoxicants. and therefore the order under s. 98 of the Act y:as
illegal.
The State appealed,
HELD : U oder s. 98 what has to be seen is whether an offence under
the Prohibition Act in respect of the property in que5tion has been com·
milted or no~ An offence may be demonstrated to ·be committed
although the accused who committed it may not be successfully prosecuted.
On proof that there is a contraband artic1e in respect of which an
offence has been committed the obvious course is to confiscate it to tbc
State.
Therefore in the prcsont case if the court was satisfied that lhe
bottles contained contraband article the bottles could be confiscated.
[449 C-EJ
.
[Order of the High Court set aside \\ith the direction that a
few
bottles at random should be analysed and if contraband stuff against the
prohibition act was found the whole stock should be confiscated.]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
162 of 1965.
G
Appeal by special leave from the judgment and order dated
January 8, 1965 of the Gujarat High Court in Criminal Appeal
No. 345 of 1964,
Urmi/a Kapur and S. P. Nayar, for the appellant.
The .respondent did not appear.
H
The Judgment of the. Court was delivered by
Hidayatwllah C.J. This is an appeal by special leave against
the judgment and order of a learned Single Judge of the High
448
SUPREME COURT REPORTS
(1968) 3 S.C.R.
Court of Gujarat, January 8, 1965, by which an order confiscat:
ing 1500 and odd bottles said to contain intoxicating liquor by
the City Magistrate, 8th Court, Ahmedabad, has been set aside.
The facts of the case are as follows.
On January 9, 1963,
Sub-Inspector, Benot of Ahmedabad City raided a godown consisting of two rooms in Serial No. 1510/0 and Survey No. 324/0.
He found several deal boxes which were opened and each ·box
was found to contain 144 bottles packed with grass, each bottle
containing 4 oz. of some liquid. Bottles were of two kinds, one
containing yellow liquid and the other a red liquid. The bottles
co11~ng ye)liOw liA,uJd were labelled
'U. D. Colbn Solvek
Cosmetics Bombay, 28.', and the bottles containing red liquid
were labelled 'Jasmine Batch No.
3. Solvek
Cosmetics
Bombay.'
From these
bottles,
two
bottles,
one
of
each kind, were selected and were sent to the Chemical Examiner. Baroda for test. Before sending them, the Panchas were
allowed to .. seal the bottles with
paper slips containing
the
si~nat~re 'of panchas pasted on them for identification. On
anuiysi.s;.they were found to contain alcohol and the respondent
Chinubhai Gopaldas was prosecuted under s. 66(b)
of the
Boinbay P,rohibition Act.
The other bottles numbering 1584
containing 6336 oz. of alleged alcohol were kepi intact.
Gopal Das's pros~ution failed.
He was acquitted by the
City Magistrate, because according to him, it was not proved
beyond
reasonable doubt that he was in possession of these
bottles on his own. It was found that he possessed them as
agent~ of a wholesale merchant. It is in evidence however · that
he did not po~scss a permit or licence for
possessing alcohol.
The Magistrate while acquitting him ordered the confiscation of
the remaining bottles under s. 98 of the Prohibition Act.
The State Government did not appeal against the acquitt;tl.
Gopaldas went to the High Court 'in appeal against the order
of confiscation.
The learned Single Judge of the High
Court
ordered return of the bottles, because according to him it was
not proved that the 1500 and odd other bottles also contained
intoxicants.
He therefore held that the confiscation of the
bottles was illegal as no order under s. 98 of the Bombay Prohibitim~ Act could be passed.
In this appeal by the State of Gujarat it is contended that
s. 98 applies to the case.
That section reads as follows :
A
B
c
D
E
F
G
"Whenever any offence punishable under this Act
has been ·,committed,
ff
(a) any intoxicant, hemp, shora,
flowers,
molasses, materials,
still, ntensil, implement or
A
B
c
D
E
F
G
H
GUJARAT v. C!IlNUBHAI GOPAL DAS (Hidayatullah, C./.)
449
apparatus in respect of which the offence has
been committed,
shall be confiscated by the order of the Court."
The short question therefore is whether it can be said that
in respect of the 1500 and odd bottles, an offence punishable
under the Prohibition Act had been committed. It is no doubt
true that the person who was charged with committing an offence
was found not guilty, but the question is not whether the accused
has been successfully
brought to book, but whether the
offence in respect of the property has been committed or not.
There is distinction between the two. An offence may be demonstrated to be committed although the accused who committed it
may not be sucoessfuly prosecuted. We may give an example.
Suppose in a house a vast quantity of contraband opium is found.
The householder may get off because the opium was found from
a place which was open and had access to strangers. He may
get the benefit of doubt and be acquitted, but it is clear that in
so far as the opium is concerned, an offence must be deemed to
have been committed, and if it is proved that the contraband
article was opium, it would be remarkable that the order should
be that the opium be returned to the householder.
In these
circumstances, on proof that the contraband article in respect of
which an offence has been committed is proved to exist,
the
obvious course would be to confiscate it to the State.
In the
present case, the two bottles which were sent to the Chemical
Examiner were said to contain alcohol although there was some
doubt in the mind of the Magistrate as to whether ther(l was no
chance of any malpractice. Be that as it may, there are the
other 'bottles intact. There is some evidence to show that they
were in the original packing and were a proprietary product. The
manufacturer came as a witness and deposed that the liquids
were bottled by him as a proprietary manufacture. In these
circumstances, it would be fair to assume that all of them were
of the same kind as the ones which were sent for
chemical
examination.
However an examination of random samples can
be made and if they satisfy the court that the bottles contain contraband articles the bottles can be confiscated. The
order of the High Co~rt is thus set aside, but instead of restoring
the order of confiscation we order that a few bottles at random
should be analysed and if contraband stuff against the Prohibition Act is found the whole stock shall be confiscated.
The appeal is allowed and the case is remanded as ordered.
G.C.
Appeal allowed.