Court : Mumbai
Reported in : 1990(3)BomCR50; 1990CriLJ685
..... 43 of the bombay abkari act (5 of 1878) came up for interpretation. ..... bhobe indeed argued that neither in the abkari act nor in the bombay prevention of gambling act the expression 'and also' is found. ..... , kolhapur, who, on hearing the parties made a reference to the high court that what was decided by the learned magistrate was not a good law more particularly in view of the amended sections 4 and 5 of the bombay prevention of gambling act, which, according to the learned additional sessions judge, made it obligatory upon the court to pass sentence imprisonment even in cases where an accused committed an offence for the first time, the imposition of fine notwithstanding.9. ..... on the construction of section 43 of the abkari act the full bench ruled that no mandate can be read in that section for a court to impose a penalty of substantive imprisonment at the same time impose a fine and in that view of the matter it was held to be discretionary.4 ..... section 43 of the abkari act had been amended by the amending act 1947. ..... peter d'souza (1949) cri lj 137 it may not be necessary to set out facts as the matter strictly rests on interpretation of section 43 of the abkari act. ..... inasmuch as the word 'punished' is not found but instead the word 'punishable' occurring therein the learned judge, as he then was, held that sections 4 and 5 of the bombay prevention of gambling act is not mandatory in nature in imposing cumulative sentences.10. mr. ..... sections 4 and 5 of the bombay act read as follows :-'s. 4. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1951Bom186; (1950)52BOMLR280; 1952CriLJ41
..... so far as the present case is concerned, the learned government pleader has argued that under the provisions of the bombay abkari act, it is not necessary to make a search of an open place in the presence of the panchas. ..... this is an appeal by the government of bombay against the acquittal of two accused persons who had been charged with having committed offences punishable under clauses (a), (b) and (h) of section 43 (1) of the bombay abkari act. ..... in our opinion, therefore, accused 1 cannot be held to have committed any offence under the bombay abkari act. ..... relying on this evidence, we find accused 2 guilty of the offences punishable under clauses (a), (b) and (h) of section 43 (1), bombay abkari act.7. ..... in that case a small island near bombay was raided after the receipt of information about the commission of an offence under the abkari act. ..... accordingly convict accused 2 under clauses (a), (b) and (h) of section 43(1), bombay ahkari act, and sentence him to pay a fine of rs. ..... what we meant was that court should be slow to act on the uncorroborated testimony of investigating officers in regard to property discovered by them on making a search, when under the law such a search must be made in the presence of two independent and respectable ..... if after exercising due care and caution, the court comes to the conclusion that it can safely be acted upon, it can proceed to act on it and convict the accused.5. ..... the government of bombay have appealed against the order acquitting the two accused .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1938Bom427; (1938)40BOMLR820
..... was charged along with the manager of that booth under section 46(e) of the bombay abkari act with the offence of exposing for sale toddy which was adulterated with chloral hydrate. ..... is an appeal by the government of bombay against an order of the learned presidency magistrate, second additional court, mazagaon, bombay, ordering the respondent to be acquitted under section 46(e) of the bombay abkari act (bom. ..... under section 46 of the bombay abkari act the adulteration of toddy and exposing it for sale is an ..... question we have to decide is what is the degree of care and caution expected of a licensee to exempt him from liability for the act of his servant by virtue of the provisions of section 47 of the bombay abkari act. ..... of the law which make adulteration of toddy in contravention of the permit or license an offence are contained in section 46 (e) of the bombay abkari act (bom. ..... both the respondent licensee and his servant, who was then present in the booth, were prosecuted under the provisions of section 46 (e) of the bombay abkari act. ..... the material provisions are to the following effect :-whoever, being the holder of a license for the sale or manufacture of any excisable article under this act, or a person in the employ of such holder or acting with his express or implied permission in his behalf...keeps or exposes for sale any excisable article which is not of the nature, substance and quality...authorized by the terms of the license to be kept for sale ..... of 1878). ..... of 1878). .....
Tag this Judgment!Court : Mumbai
Reported in : (1940)42BOMLR669
..... of these appeals is from a conviction by the sessions judge of ahmedabad of the accused under section 43 (1) (a) of the bombay abkari act, v of 1878. ..... the bombay abkari act was passed in the year 1878, and it replaced earlier legislation on the subject which had commenced with regulation xxi ..... was introduced by means of notifications by the government of bombay issued in terms under sub-section (2) of section 14b of the bombay abkari act. ..... the bombay abkari act.3. ..... our attention was drawn to the fact that in the amendment of the abkari act, bombay act vi of 1939, the expression was used in three places ' individuals, class of individuals, or public ..... would place it in the power of the government of the day, not only to bring the whole administration of the abkari act to an end, but further by a stroke of the pen, without any previous warning or the provision of any compensation, to destroy the value of businesses built up, it may be, over many years and with the expenditure of much capital, in reliance on the continuance of government policy under the abkari act and the previous legislation on the subject. ..... we have been referred in detail to the provisions of the act, but we think it sufficient to say that in our opinion the object of the act was primarily to secure abkari revenue, though some of the section s, for example section 17a and section 35 (2) (g) and (h), show that the legislature intended also to confer power to control the trade in drink and drugs, and to obviate .....
Tag this Judgment!Court : Mumbai
Reported in : (1950)52BOMLR591
..... this is an appeal from a judgment of the high court of judicature at bombay dismissing an appeal from a conviction and sentence by the presidency magistrate, fifth court, bombay, for an offence under the bombay abkari act (v of 1878).2. ..... on appeal to the high court her main contention was that the provincial legislature had no power under the government of india act, 1935, to-legislate with respect to the possession of foreign liquors, and that section 14-b of the bombay abkari act, as amended by the bombay abkari (amendment) act (xxix of 1947), in so far as it purported to restrict or prohibit the possession of such liquors was void and inoperative. ..... for the reasons indicated we hold that section 14-b of the bombay abkari act, as amended by bombay act xxix of 1947, is valid, and dismiss the appeal. ..... to appreciate the arguments advanced on behalf of the appellant, it is necessary to give a brief account of the history of the bombay abkari act. ..... the bombay abkari (amendment) act, 1940, was accordingly passed by the governor of bombay who had assumed legislative powers by a proclamation under section 93 of the constitution act. ..... that act was repealed, but the amendments aforesaid were re-enacted by the bombay abkari (amendment) act, 1947, which was passed by the provincial legislature after the lapse of the governor's proclamation under section 93. .....
Tag this Judgment!Court : Mumbai
Reported in : AIR1938Bom43; (1937)39BOMLR1062
..... this is an appeal by the government of bombay against an order made by the presidency magistrate, 5th court, acquitting the accused, who was charged with an offence under section 43(1)(a) of the bombay abkari act (bom. ..... 'transport' as defined by the bombay abkari act means to move liquor from one place to another ..... he had with him an open bottle of country liquor containing five drams, and he was arrested in bombay, and charged with an offence under the bombay abkari act. ..... if a man comes to a place and stays there for an appreciable time-and what amounts to an appreciable time would have to be considered in relation to the purposes of the act-the court might hold that that place was the destination although it appeared that the journey was to be resumed subsequently. ..... c-1277 of 1922, which runs as follows :-provided however that in the case of transport from a lower to a higher stillhead duty area within the bombay presidency the maximum limit shall be one-quarter of a pint.3. ..... but the rate of duty in bombay is higher, and if the transportation was from jogeshwari' to bombay, then the amount of five drams is in excess of the amount allowed by government notification ..... but if that is the only act of transport, it is admitted by the government pleader that the amount of liquor, namely, five drams, which the accused had with him, was within the limits allowed by government notification made under section 12 of the act, because the rate of duty at jogeshwari and poona is the same ..... v of 1878). .....
Tag this Judgment!Court : Mumbai
Reported in : (1948)50BOMLR181
..... the position was when the offence is alleged to have been committed, namely, on march 13, 1946, that under the abkari act it was open to the accused to possess foreign liquor to an unlimited extent. ..... as we have pointed out, under the abkari act that possession was perfectly legal and valid and yet if the ordinance applied that possession was an ..... that looking to section 17 of the ordinance we are controlled by the abkari act, and not by the ordinance. ..... in our opinion it is the abkari act which as a special law deals with the question of possession of liquors and intoxicants including foreign liquor, and as the law stood the subject had the right to possess foreign liquor to an ..... the abkari act does deal, among other things, with possession of liquor and intoxicating drugs, and under section 17 the provincial government may by notification in the official gazette determine a limit of quantity within which and ..... test the argument by a certain provision contained in section 14b of the abkari act. ..... 16, 1943, the question of possession of liquor including foreign liquor was regulated by section 14b of the abkari act. ..... not as if section 8 in any sense mitigates the offence constituted by section 7, but apparently section 8 gives a sort of locus poenitentiae to the accused, and if he acts under section 8, government may not as a matter of policy prosecute him, under the ordinance. ..... is an appeal from an order of conviction and sentence passed by the presidency magistrate, sixth court, bombay. .....
Tag this Judgment!Court : Mumbai
Reported in : (1913)15BOMLR227
..... the business of selling liquor in the bombay presidency is regulated by the provisions of the abkari act, bombay act v of 1878. ..... 668, the 15th rule of the abkari act in force in 1895 provided that the lessee was not without the previous written permission of the collector to sublet, in whole or in part, the right to vend conferred upon him by the license or admit persons into his ..... the first point he takes is that the preamble shows that the right given to sell liquor was a non-transferable right, and he points out that section 43 of the act and clause 19 of the license provide that no licensee shall sell or transfer to another's name or sublet the right which he is granted. ..... the license is presumably granted by the abkari authorities in order that they may have control over the person who is authorised to sell the liquor and in order that the sale of the liquor may not pass out of his control to unauthorised persons. ..... it appears to us that the only inference must be that the abkari authorities have decided not to prohibit the taking in of other persons into partnership in the profits derived from the selling of liquor under an abkari license.7. ..... with the question of the legality of the agreement, assuming it to be in existence, and he has come to the conclusion that the contract for partnership would be forbidden by law and opposed to the policy and general tenor of the act and, therefore, cannot be enforced in a court of law. .....
Tag this Judgment!Court : Mumbai
Reported in : (1910)12BOMLR124
1. we think that we ought not to interfere with this acquittal, and that the magistrate was right in declining to convict the accused under section 43 (b) of the bombay abkari act v of 1878. the fact was that the accused's possession of this cocaine was altogether illegal, and, in these circumstances, it seems to us that section 43 (6) does not apply. that section seems to contemplate rather the case of a person who is in lawful possession of cocaine at one place, but is by law forbidden to remove it either partly or wholly to another place. here the offence consisted not in moving the cocaine from one place to another, but in the unauthorised possession of it at any place in contravention of the act. the appeal, therefore, must be dismissed.
Tag this Judgment!Court : Mumbai
Reported in : (1922)24BOMLR210; 67Ind.Cas.280
..... by statute has restricted the power of dismissal under section 7 of act v of 1878 and that provision under section 7 of the act is made for the protection of officers employed in the excise department.10 ..... taraporevalla has urged that having regard to the provision of section 7 of act v of 1878, the government's powers of dismissal of one of its officers in the excise department have been fettered and restricted by statute and if that is so the rule laid down in the case of ..... wag employed under section 6 of act v of 1878 and section 6 enacts that:-to aid the collectors in carrying out the provisions on this act, the commissioners may, subject to such orders as may from time to time be passed by government in this behalf, appoint such subordinate officers with such designations, and assign to them respectively such powers and duties under this act, as they deem fit...5. mr. ..... of subordinate officers in the excise department are regulated by section 6 of the act and that power has been delegated by the government to the commissioner and the commissioner is the only person who can make the appointments subject to the order limiting the number of subordinate officers who have to be appointed for the purpose of carrying out the provisions of act v of 1878. ..... are made under the signature of the commissioner and i have no doubt in my mind that these appointments of officers in the excise department and of the plaintiff was made under section 6 of act v of 1878. ..... opium and abkari, bombay.3. .....
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