Chainani, J.

1. These two appeals have been heard together, as they raise common questions of law. In both these cases, the accused were found distilling liquor. Certain quantities of illicit liquor and wash were also found in their possession. They have been convicted under Section 65 (b), Bombay Prohibition Act for manufacturing liquor, Section 66 (b) for possessing liquor and Section 65 (f) of the Act for possessing materials and apparatus for the purpose of manufacturing liquor. On the evidence led against the accused, we felt satisfied that their convictions were correct.

2. Even though the main offence committed by them is that of manufacturing liquor, there is no doubt that their convictions for the offences of having in their possession liquor and materials and apparatus for preparing liquor are also legal, in view of Section 235, Criminal P. C. see illus. (i) (j) and (m) to that section. We, however, admitted the appeals in order to consider whether the separate sentences passed on the accused for these three offences were legal and proper.

3. The question has to be determined by reference to the provisions of Section 71, Penal Code and Section 35, Criminal P. C. Section 27, Bombay General Clauses Act will not apply, as the acts committed by the accused do not constitute offences under two or more different enactments.

4. Section 71, Penal Code, is in the following terms:

"Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not ba punished with the punishment of more than one of such his offences, unless it ba so expressly provided.

Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or

where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence,

the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences."

5. The relevant portion of Section 35, Criminal P. C. is ag follows :

"(1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of Section 71, Penal Code, sentence him, for such offenses, to the several punishments prescribed therefor which such Court is competent to inflict, . . . . "

Before 1923 the first part of this section was as follows :

"When a person is convicted at one trial of two or more distinct offences, the Court may sentence him, for such offences, to the several punishments prescribed therefor which such Court is competent to inflict, . . ."

The section also contained the following explanation :

"Separable offences which come within the provisions of Section 71, Penal Code are not distinct offences within the meaning of this section."

There was an illustration to this section stating that breaking into a house with intent to commit theft and stealing property from the house were not distinct offences.

6. As these provisions had led to considerable divergence of opinion between the different High Courts, the word "distinct" and the illustration and the explanation to Section 35 were deleted in 1928 by Act XVIII [18] of 1923 and the words

"subject to the provisions of Section 71, Penal Code"

were added to make it clear that this section must be read subject to Section 71, Penal Code. It ia, therefore, no longer necessary for separate sentences being passed that the offences should be distinct. The decisions of the various High Courts on the effect of Section 35, Criminal P. C., read with Section 71, Penal Code, even after the amendments made in 1923 have, however, not been uniform, see Emperor v. Piru Rama, 49 Bom. 916 (A. I. R. (13) 1926 Bom. 64 : 27 Cr. L. J. 113), Ponniah Lopes, In re, 57 Mad. 643: (A. I. R. (21) 1934 Mad 388: 35 Cr. L. J. 1226) and Bajo Singh v. Emperor, 8 pat. 274: (A. I. R. (16) 1929 Pat. 263 :