IMPORTANT POINT
Where there was no evidence that accused 1, 2, 3, 5 sold or attempted to sell or transfer the prohibited liquor which was found to be tram ported in a truck in which accused 1 and 2 were seated, the accused cannot be convicted under section 65(e) of the Bombay Prohibition Act, 1949 for selling or transferring the prohibited liquor, nor under section 81 of the Act for an attempt or abetment to sell or transfer prohibited liquor.

JUDGMENT

Varadarajan, J. - These Criminal Appeals by special leave are directed against the judgment of a learned Single Judge of the Gujarat High Court (C.Y. Rane, J.) in Criminal Revision Application No. 462 of 1973 and Criminal Appeal No. 593 of 1973. Thavaruas Parasram and Prabhakar Devram, accused Nos. 1 and 2, respectively, are appellants in Criminal Appeal No. 153 of 1975. Bhugdomal Gangaram and Gulabji Jesangji, accused Nos. 3 and 6 respectively, are appellants in Criminal Appeal Nos. 77 of 1975 and 78 of 1975 respectively. Shyamsunder Parbhuram, accused No. 5, is appellant in Criminal Appeal No. 109 of 1975. These five accused and Mohan Hairomal and Chandubhai Jivabhai Thakur, accused Nos. 4 and 7 respectively, were tried by the learned Judicial Magistrate, First Class Matar in his Camp Court, Ahmedabad for offence under Ss. 65(a)(d)(e) 66(1)(b) and 81 of the Bombay Prohibition Act, 1949.

2. The fourth accused Mohan Hairomal died before he could be examined under S. 342 of the old Code of Criminal Procedure. The learned Magistrate acquitted accused 3,6 and 7 of the entire charge framed under Ss. 65(a)(d)(e) and 66(l)(b) and 81 and accused Nos. 1, 2 and 5 of the charge framed under S. 65(a) and (d) but convicted them under Ss. 66(e), 660, (b) and 81 of the Act and sentenced each of them to undergo rigorous imprisonment for six months and pay a fine of Rs. 500/- under S. 65(e) and rigorous imprisonment for four months and fine of Rs. 500/- under S. 66(1)(b) and did not award any separate sentence under S. 81 of the Act. He ordered these accused to undergo imprisonment for two months under each of the two counts in default of payment of the fine. He directed that the taxi GTD 7555 be returned to the seventh accused and the truck G.T.D. 4098 be sold and its sale proceeds to be confiscated to the Government.

3. The State of Gujarat filed Criminal Appeal No. 593 of 1973 against the acquittal of accused 3, 6 and 7 while Criminal Revision Application No. 462 of 1973 was filed by accused 1,2 and 5 against their conviction and the sentences awarded to them by the learned Magistrate. The learned Single Judge dismissed the appeal against acquittal of accused No. 7 and allowed it as against accused Nos. 3 and 6 and dismissed the Criminal Revision Application, observing that the conviction of accused 1,2 and 5 under Ss. 66(l)(b), 65 (e) and 81 of the Act by the learned Magistrate is proper and that "even though there is no direct evidence to show that those accused were actually found selling prohibited liquor it can safely be held in view of the provisions of S.H of the Act that they attempted to commit the offence under S. 65(e) of the Act and also abetted each of them in the commission of that offence." The learned Judge further observed that though the offence was committed as fair back as in 1970 and accused Nos. 3 and 6 were acquitted by the learned Magistrate on 11.5.1973, as the quantity of the prohibited liquor concerned in this case was 40 drums of 5 gallons each these two accused Nos. 3 and 6 should be sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 500/- each under S. 65(e) read with S. 81 of the Act and rigorous imprisonment for four months and fine of Rs. 500/- each under S. 66(1)(b) of the Act and he ordered accordingly. He maintained the sentence awarded to accused 1, 2 and 5 under Ss. 66(l)(b) and 65(e) read with S. 81 of the Act.

4. Hence these appeals by special leave. The special leave granted to accused Nos. 1 and 2 in S.L.P. (Criminal) No. 428 of 1975 out of which Criminal Appeal No. 153 of 1975 has arisen has been restricted to the offence under S. 65(e) of the Act. The sixth accused

Gulabji Jesangi died pending the appeal in this Court. Consequently Criminal No. 18 of 1975 has become in fructuous. So in these Appeals Nos. 77, 109 and 153 of 1975 we are concerned with accused Nos. 1 and 2 as regards their conviction under S. 65(e) read with S. 8l and with accused Nos. 3 and