In Re: Bhoopathy

M. Anantanarayanan, J.—This revision proceeding involves a question of some interest with regard to the applicability of Section 5 of the

Madras Prohibition Act to the established facts of this case. As far as the evidence is concerned, we may take it as proved that Head Constable

981 (P.W. 1) stopped and searched the revision petitioner and recovered from his person a bottle (M.O. 1) containing 8 drams of denatured spirit

mixed with water which according to the Head Constable (P.W. 1) had been rendered potable. P.W. 1 is corroborated ,by P.W. 2. Further, we

have the report of the Analyst attached to the Forensic Science Laboratory to the effect that the liquid contained 37.7 per cent of proved spirit and

that it was varnish upon which an attempt had been made as to render it potable by adding water and sodium chloride.

Now, u/s 5 of the Act:

Whoever renders or attempts to render fit for human consumption any spirit or preparation containing spirit whether manufactured in India or not,

which has been denatured or any preparation containing such spirit or has, in his possession, any spirit or preparation containing spirit in respect

which he knows or has reason to believe that any such attempt has been made shall be punished....

the rest of the section, containing the actual punitive provisions does not now concern us.

Admittedly the revision petitioner was not detected in rendering, or attempting to render fit for human consumption, the spirit or preparation

containing spirit. If he is guilty u/s 5 at all, he is guilty only under the latter part of the section, because he had in his possession a preparation

containing spirit, in respect of which an attempt had been made to render it potable by adding sodium chloride and water. Learned Counsel for the

revision petitioner takes the point that even the Analyst has not said that the adding of sodium chloride and water to varnish, will necessarily render

it fit for human consumption, but that is the implication of the report. This apart, the latter part of Section 5 further requires that the person in

possession of the preparation so rendered potable, must know or have reason to believe that such an attempt had been made. On this aspect,

there is no evidence whatever. No inference to that effect can be drawn, in my opinion, from the mere possession of the preparation. For,

obviously, the revision petitioner might have been in possession of the preparation thinking it to be illicit liquor, and not necessarily knowing or

having reason to believe that it is varnish rendered fit for human consumption by adding a particular solution.

In the light of the record, I do not think that the conviction u/s 5 of the Madras Prohibition Act can be sustained. On the contrary, the very facts

establish the offence u/s 4(1)(a), namely, of possession of liquor or an intoxicating drug; so much is indisputably established. Accordingly I allow

the revision to the extent of altering the conviction into one u/s 4(1)(a) of the Madras Prohibition Act, with reference to possession of liquor. The

law does not require, unlike the case of an offence u/s 5 of some other category of Section 4(1)(a), that a minimum sentence should be imposed

for this offence. This revision petitioner has already served out an appreciable period of the sentence actually imposed (rigorous imprisonment for

three months and fine of Rs. 50). Hence, the sentence u/s 4(1)(a) will now be the period of imprisonment already undergone by the revision

petitioner and a fine of Rs. 50 or rigorous imprisonment for one month in default. Time for payment of fine three weeks.