Mahabir Singh vs Emperor

Coutts, J.—The petitioner in this case is one Mahabir Singh, who was a clerk of the liquor warehouse or depot at Gopalgunj. He has been convicted under sections 47(a), 47(h) and 55 of the Excise Act and has been sentenced to a fine of Rs. 200 or in default to undergo rigorous imprisonment for one month.

It appears that on the evening of 13th July 1918 the petitioner was seen coming out of the warehouse office with something wrapped up in cloth under his arm. He went to the water-tank which adjoins the warehouse and left this bundle there-Shortly afterwards, the petitioner handed over the bundle to one Sukat Kurmi who was a coolie working at the depot and asked him to take it to the petitioner''s house. Sukat started for the house of the accused, but was arrested by the Excise Sub-Inspector. The bundle was opened and was found to contain a bottle of liquor 64-6 over proof. On the statement of Sukat the accused was sent for but declined to say anything. The investigation was then taken up by the Excise Sub-Inspector, who submitted a report asking for the prosecution of the petitioner and Sukat u/s 47(h) of the Excise Act. On this report a prosecution was started by the Sub-Divisional Magistrate under sections 47(a), 47(h) and 55, with the result that the petitioner has been convicted and sentenced as already stated.

The first point taken in this revision is, that in the report of the Sub-Inspector prosecution was asked for only u/s 47(h) and that the report did not disclose any offence u/s 47(a) or section 55. This contention is not sustainable. It is true that in column 6 of the Sub-Inspector''s report he asked only for prosecution u/s 47(h) for the illegal removal of the bottle of country spirit from the warehouse; but from column 8 it is clear that offences under sections 47(a) and 55 were also disclosed, because in this column it is stated that the liquor was made over by the petitioner to Sukat and further that it was made over at the depot well.

The next point urged is that the conviction u/s 47(h) is bad, inasmuch as the learned Sub Divisional Magistrate has made use of the presumption created by section 48 of the Act. It is conceded, and it is obviously so, that section 48 does not apply in a case of removal of liquor. But it is clear from the evidence recorded by the Sub-Divisional Magistrate, that the accused removed the liquor from the depot office. The depot office is apparently the same place as the warehouse office and appears to be a part of the warehouse. The removal, therefore, was from the warehouse.

I, therefore, see no reason to interfere with the order of the Sub-Divisional Magistrate. The question of sentence has been referred to, but it does not appear to be unduly severe.