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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.

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 : 31 Cr. L. J. 83).
"...we agree in the view taken by Mr. Mayne, at p. 44 of his Commentaries on the Penal Code, of the combined effect of Section 71, Penal Code and Section 235, Criminal P. C., viz., that the assessment of punishment is to be found in the former section in cases falling within it; but the latter determines the procedure quite independent of it, and this Court has already ruled that, in case of separate conviotiona for two distinct offences in the aama case, the proper course is to pass a separate sentence for each offence."