1976 Supreme(SC) 395

SUPREME COURT OF INDIA
P.N. BHAGWATI AND S. MURTAZA FAZAL ALI, JJ.
Patel Jethabhai Chatur, Appellant
Versus
State of Gujarat, Respondent.
Criminal Appeal No. 385 of 1976, D/- 20-10-1976.
Advocates appeared
M/s. N. N. Keswani and Ramesh N. Keswani, Advocates, for Appellant; M/s. K. H. Kazi and M. N. Shroff, Advocates, for Respondent.

Headnote:

Bombay Prohibition Act, 1949 - Section 66 (1) (b) - Constitution of India, 1950 - Article 136 - Possession of liquor – Acquittal of order - Exercise of its jurisdiction - Whether acquittal of appellant was correct or not and without finding that acquittal was erroneous proceeded to set aside acquittal and direct retrial - Whether acquittal of appellant for offence of consuming liquor was right or wrong and it was not competent to High Court to frame a new charge for possession of liquor and direct trial of appellant and other accused on such new charge - Whether acquittal was right or wrong but merely because it took view that a further charge should have been framed against appellant and accused Nos. 3 to 8, it set aside acquittal and directed retrial of appellant and other accused – Appellant original accused No. 2 was at all material times working as District Health Officer in District in State of Gujarat - He was according to prosecution fond of liquor and whenever he used to go out in connection with his duties he used to participate in drinking parties - On August he visited a town situate in District and late in evening of that day he attended a drinking party which was arranged by accused No. 1 in his agricultural farm situate at a place - 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 drinking party District Magistrate and District Superintendent of Police along with other police officers and pinch witnesses raided agricultural farm where the drinking party was in progress - Raid was carried out after midnight and on seeing police appellant and other accused tried to run away but they were apprehended - 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 panch witnesses and a panchnama was prepared - Appellant and other accused were thereafter taken to hospital where their blood was taken by Civil Surgeon for purpose of carrying out necessary test for determining presence of alcohol - Analysis of the blood revealed that in case of appellant concentration of alcohol in blood was more than per cent weight in volume while in case of other accused – Held, High Court could legitimately in exercise of its jurisdiction set right the error committed by learned Judicial Magistrate in not framing a proper charge – Here High Court, on a consideration of the material which was before learned Judicial Magistrate came to conclusion that this material warranted framing of a further charge against 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 appellant and accused Nos. 3 to 8 on such further charge - High Court clearly had jurisdiction to make such an order - But then complaint made on behalf of appellant was that material before learned Judicial Magistrate did not justify framing of a charge against appellant and accused Nos. 3 to 8 for possession of liquor and hence 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 court should in the exercise of our extra-ordinary jurisdiction under Article 136 of Constitution entertain such a complaint - It is true that there are certain observations made by High Court which are a little too wide but it 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 has a glass with him with liquor in it at time when raid is carried out would it not be correct to say that he was at relevant time in possession of liquor - Liquor in his glass would be liquor in his possession - But at 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 - 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 of liquor is kept by someone in the car or house of a person without his knowledge he cannot be said to be in possession of 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 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 facts and circumstances of each case - Here in present case prosecution will have to establish at trial by leading satisfactory evidence that appellant and other accused were in possession of liquor or also prosecution on charge of possession of liquor will fail - Order directing trial of appellant and other accused for offence of possession of liquor must therefore be maintained but court think it would be desirable if this trial is taken up after disposal of appeal by High Court in regard to acquittal of appellant for offence of consuming liquor - Appeal partly allowed