Govindaraj vs State

Paul, J.—The Revision petitioner has been convicted by the learned Judicial Second Class Magistrate of Pattukottai under S. 4(1)(1)(g) of

the Tamil Nadu Prohibition Act and has been sentenced to undergo R.I. for two months and to pay a fine of Rs. 100, in default to undergo R.I. for

one month. The aforesaid conviction and sentence have been confirmed on appeal by the learned Principal Assistant Sessions Judge of West

Thanjavur Division.

P.W. 2, the Sub Inspector of Police, Madukkur and P.W. 1 the Head Constable attached to that police station were the only witnesses

examined on the side of the prosecution and their evidence was to the effect that during the course of prohibition raid along with a party of men,

they went to the house of the revision petitioner on information received and found the revision petitioner stirring a mud pot containing 10 litres of

fermented wash fit for distilling arrack in the backyard of his house and when examined the liquid was found to contain velam pattai, date fruits, etc

The pot, M.O. 1, was seized, as well as the contraband. After taking, sample of the wash M.O. 2, the rest of the wash was destroyed.

The revision petitioner refuted the evidence of P.Ws 1 and 2. The learned Magistrate and the Assistant Sessions Judge'' have accepted the

evidence of P.Ws. 1 and 2. It is now strenuously contended by the learned counsel for the revision petitioner that there is no satisfactory proof that

the liquid which the revision-petitioner was found stirring was .fermented wash and as such the prosecution has to fail. In support of this contention

the learned counsel for the revision petitioner has cited the decision in Vella Pinna Thevar In re 1970 1 M.L.J. 1689 : 1970 L.W. Crl. 123 . That

was a case under S. 4(1)(a) of the Madras Prohibition Act. In that decision, the decision of the Supreme Court in State of Andhra Pradesh v.

Madiga Boosenna and others 1968 S.C.J. 160 : 1967 L.W. Crl. 103 was referred to and it was held that inasmuch as the prosecution has failed

to prove that what has been seized from the accused was liquor, the conviction under S. 4(1)(a) was not maintainable. In Andhra Pradesh v.

Madiga Boosanna and others 1968 S.C.J. 160 : 1967 L.W. Crl. 103 the Supreme Court observed that in order to sustain a conviction under S.

4(1) (a) of the Andhra Pradesh Prohibition Act, 1937 the prosecution will have to establish two things: (1) that the article seized from the accused

is liquor as defined under S. 3(9) of that Act and (2) that the accused transported the same. The Supreme Court further observed that a general

statement by the Prohibition Inspector that strong smell of alcohol emanated from the tins which were pierced open is not enough to prove that the

contents were prohibited liquor as defined by the Act; and merely trusting to the smelling sense of the Prohibition Officers and basing a conviction

on such opinion cannot justify a conviction; and better proof by a technical person, who has considered the matter from a scientific point of view is

not only desirable but even necessary to establish that the article seized is one coming within the definition of liquor.

It is on the basis of this decision that the learned counsel for the petitioner has'' argued that the fermented wash seized from the revision

petitioner should have been sent for chemical examination. The Supreme Court also referred to its decision in Baidyanatha Mishra v. State of

Orissa decided on 17th, April, 1964, which was a case for possession of opium. The Supreme Court observed in the circumstances of that case

as follows:

It is true that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance and a

very strong and characterestic scent. It is possible for people to identify opium without having to subject the product to a chemical analysis. It is

only when opium is in a mixture so diluted that its essential characteristics are not easily visible or capable of being apprehended by the senses that

a chemical analysis may be necessary.... Two other witnesses Who were cultivators and who knew what they were talking about said that ft was

opium. If the appellants, who themselves, were licenced vendors of opium, had the slightest doubt about the correctness of these statements they

could have challenged them either by cross-examination or by suggesting to the Court that the substance be-analysed to determine whether it was

opium or not.

The Supreme Court, after referring to the above observations, stated that these observations, would clearly show as to why the Supreme Court in

that case has expressed the yiew that there was ho infirmity in the proser cution case, simply because there has been no chemical analysis made of

the commodity, which according to the prosecution, was opium.

In Crl. R.C. No. 50, 106 and 107 of 1974 (judgment dated 12th September, 1974), I had referred, to the decision in State of Andhra Pradesh

Vs. Madiga Boosena and Others, , as well as the decision in Sri Chand Batra Vs. State of U.P., In the latter case, the Supreme Court observed

that it was really for the court of fact to decide whether, upon a, consideration of the totality of the facts in a case, it has been satisfactorily

established that the objects recovered from the possession of the accused included liquor of prohibited strength. The Supreme Court further

clarified in that decision that the proposition contained in Boosenna''s case 1968 S.C.J. 160 must be confined to its own facts and observed:

We think that it is not desirable to lay down an Inflexible rule on questions of fact even though their determination requires the adoption of scientific

methods and tests. It is really for the court of fact to decide whether, upon a consideration of the totality of the facts in a case, it has been

satisfactorily established that the objects recovered from the possession of the accused included liquor of prohibited rtrength.

The question before the Supreme Court in that case was whether the Excise Inspector whose evidence was under consideration had sufficient

knowledge to be deemed to be an expert within the meaning of S. 45 of the Evidence Act, so that the tests adopted by him, together with all the

attendant circumstances, could establish beyond doubt that the appellant was in possession of illicit liquor. The case before me on that occasion

was also a case of possession of fermented wash in which there was Velampattai and Karuppatti Mandi. I observed in the aforesaid criminal

revision case that nothing was elicited from them whether by reason of their experience for a considerable length of time in detecting such offences

they had acquired the competence to decide whether the liquid was fermented wash. I have also observed that it will be practically impossible in

every such ease to send the sample for chemical analysis unless a specific demand was made by the accused to send, the same for chemical

analysis, but then, in the absence of such chemical analysis, there should be at least evidence to show that the officers who assert that the liquid was

fermented wash have the necessary competence to decide whether the liquid was fermented wash and in the absence of such evidence it cannot be

said that the prosecution have proved beyond reasonable doubt that the liquid was fermented wash.

In Rajabathar, alias Bathar v. State 1959 M.W.N. C.R. 125 , another learned judge of this court observed that it is not necessary to send the

sample of every kind of wash seized to the chemical examiner in order to find out whether it was only a mixture of water and saccharine materials,

etc. It was observed in that decision that the prohibition officers can legitimately be considered as experts and their evidence regarding the wash

may be accepted as expert testimony and it is only when they feel baffled ,the aid of the chemical examiner need be resorted to.

Another decision which is relevant for consideration in this case is the one in In re Oil. There also. Ratnavel Pandian, J. observed that if the court

is satisfied that excise or police inspector has sufficient knowledge in testing and identifying liquor, wash, etc., he can be deemed to be an expert

within the meaning of S.45 of the Evidence Act and as such the tests adopted by him together with surrounding circumstances can establish beyond

doubt that what is possessed by the accused is a prohibited article and where the court is satisfied that the police and excise officers who gave

expert opinion were well experienced persons having acquired sufficient knowledge in respect of illicit liquor, fermented wash, etc., they could be

deemed to be experts within the meaning of Sec. 45 of the Evidence Act.

Despite these categorical observations by this court in the case now before me, from P. Ws. 1 and 2, who were examined to speak to the

revision petitioner''s-stirring a mud pot containing velampattai, etc., for distilling arrack; it was not elicited as to what experience they had in

detecting such offences and the competence of them in detecting that a particular liquid was a fermented wash for distillation of arrack.

P.W. 2 the Sub Inspector stated in cross-examination that he did not have any special training which would enable him to say that the liquid was

fermented wash. P.W. 1 also stated that he did not have special training for asserting that it was fermented wash, in view of these statements of

P.Ws. 1 and 2, in cross-examination and in view of the fact, that it was not elicited from P.Ws. 1 and to 2 as to what experience they had in

detecting such articles which gave them the competence to decide whether a particular liquid was fermented wash or not, it cannot be stated that

the prosecution bat proved beyond reasonable doubt that the liquid was fermented wash.

I therefore give the benefit of the doubt to the revision petitioner and set aside the conviction for an offence under Sec. 4(1)(g) of the

Prohibition Act and the sentence meted out to him for that offence and acquit him of that offence.