State of Gujarat Vs. Chinubhai
Gopaldas  INSC 64 (13 March 1968)
13/03/1968 HIDAYATULLAH, M.
CITATION: 1968 AIR 1275 1968 SCR (3) 447
Bombay Prohibition Act, ss. 66(b) and
98--Acquittal of person charged with offence under s. 66(b)--Property in
respect of which offence committed may still be confiscated under s. 98.
A stock of bottles apparently containing
cosmetic preparations was found from the possession of the respondent. On analysis
the bottles which were taken as samples were found to contain alcohol and as
the respondent did not have any licence for possessing alcohol he was Prosecuted
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 was illegal. The State appealed,
HELD : Under s. 98 what has to be seen is
whether an offence under the Prohibition Act in respect of the property in
question has been committed or not. 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 article in respect of which an
offence has been committed the obvious course is to confiscate, it to the
State. Therefore in the present case if the court was satisfied that the
bottles contained contraband article the bottles could be confiscated.[449C-E]
[Order of the High Court set aside with 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.
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.
Urmila Kapur and S. P. Nayar, for the
The respondent did not appear.
The Judgment of the Court was delivered by
Hidayatullah C.J. This is an appeal by special leave against the judgment and
order of a learned Single Judge of the High 448 Court of Gujarat, January 8,
1965, by which an order confiscating 1500 and odd bottles said to contain
intoxicating liquor by the City Magistrate, 8th Court, Ahmadabad, has been set
The facts of the case are as follows. On
January 9, 1963, Sub-Inspector be not of Ahmadabad City raided a godown consisting
of two rooms in Serial No. 151010 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 containing
Yellow liquid were labeled 'U. D. Colon Solvek Cosmetics Bombay, 28. , and the
bottles containing red liquid were labeled '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 signature of panchas pasted on them for identification. On
analysis, they were found to contain alcohol and the respondent Chinubhai
Gopaldas was prosecuted under s. 66(b) of the Bombay Prohibition Act.
The other bottles numbering 1584 containing
6336 oz. of alleged alcohol were kept intact.
Gopal Das's prosecution 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 agents of a wholesale merchant. It is
in evidence however that he did not possess 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
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 Prohibition 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 :
"Whenever any offence punishable under
this Act has been committed, (a) any intoxicant, hemp, shora, flowers,
molasses, materials. still, utensil, implement or 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 successfully
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 there
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 Court 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
The appeal is allowed and the case is
remanded as ordered.
G.C. Appeal allowed.