The presumption under S. 103 of the Bombay Prohibition Act, 1949 arises 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.

Judgment

IMAM, J. : The appellants were convicted under 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, Mazagaon, Bombay. The appellant No. 1 was sentenced to 9 months rigorous imprisonment and a fine of Rs. 1,000 under S. 65(b). No separate sentence was imposed 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 Bombay High Court against their convictions and sentence. The High Court set aside their convictions under sections 65(b) and 66(b) of the Act but maintained their conviction under S. 65(f) read with S. 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.

2. According to the case of the prosecution, there was a search on August 2, 1958, of certain premises in the occupation of appellant No. 1 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. 1 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 1 1/2 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.

3. 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 of which he made a report to the Magistrate. Accordingly, it was of the opinion that the convictions under Ss. 65(b) and 66(b) could not stand.

4. On behalf of the appellants it was urged that no presumption under S. 103 of the Act could arise as it had not been established, on the findings of the High Court, that the still was an apparatus for the manufacture of any intoxicant as is ordinarily 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 provisi