In Re: Kaliyan alias Muthusamy

Sathar Sajeed, J.—The accused, aggrieved by the judgments of the Courts below, is the petitioner in the above Criminal Revision Petition.

The accused was charged under S. 4(1)(i) of the Tamil Nadu Prohibition Act on the ground that on 17th November 1976 at 4-45 p.m., he was

found selling arrack at the road junction of Akkarapatti. It is the case of the prosecution that the Sub Inspector of Police, Mallasamudram, who is

P.W.2 in this case, was accompanied by the Village Munsif (P.W.1) and the police party were going for detection of prohibition offences in the

village. At the road junction of Akkarapatti, according to the prosecution, one Abdul Kadar was found to have been in a drunken state and when

questioned as to wherefrom he has consumed arrack, he gave out the information, and on the information furnished by him, the police party

proceeded to Anaipillaiarkoil and near the northern wall of the said temple, it was found that the accused was sitting and selling arrack to one

Palaniappa by taking it from an aluminium deksha, for a sum of Rs. 2/-. P.W.1 surrounded the accused and recovered from his possession the

aluminium deksha covered with a cloth which is M.O.1. The said M.O.1 was found to contain one litre of arrack. The prosecution has also

recovered from the said place M.O.2 a white bottle, M.O.3, a honey coloured bottle, M.O.4 a glass tumbler and M.O.5 an aluminium tumbler.

When the accused was interrogated, it is the case of the prosecution, he has produced the sale proceeds of arrack which was in his possession

which are also marked as M.O.6 to M.O.10 series.

The arrack and the M.Os. as aforesaid were seized under Ex. P1 in the presence of witnesses. It is the further case of prosecution, that the

accused and others, who had consumed arrack, were also arrested. Thereafter, the Sub Inspector of Police registered a case against the accused

under S. 4(1)(i) of the Tamil Nadu Prohibition Act.

The accused when questioned by Court, denied the offence and he has examined one witness apart from himself. According to the accused, at

the relevant time of his arrest, he was grazing cattle in his field and four constables from Mallasamudram police station came there and took the

accused away stating that the Sub Inspector of Police wanted him. He further stated that the police has foisted a false case against him due to prior

enmity and that he was not selling arrack or prohibited alcohol as alleged by prosecution.

The Judicial Second Class Magistrate, Tiruchengode, on the evidence adduced by the prosecution and also on going through the evidence of the

defence witnesses, was convinced that the accused was selling arrack and is liable under S. 4(1)(i) of the Tamil Nadu Prohibition Act and,

therefore, convicted arid sentenced the accused to rigorous imprisonment for six months and to pay a fine of Rs. 1,000/- in default to undergo

rigorous imprisonment for three months.

Aggrieved by the judgment in C.C. No. 4986 of 1976, the petitioner herein preferred CA No. 169 of 1977 before the Chief Judicial

Magistrate, Salem. The learned Chief Judicial Magistrate, on going through the evidence and the exhibits filed in the case and also after hearing the

arguments of the petitioner''s counsel and the Public Prosecutor, was convinced that the judgment of the trial Court does not suffer from any

infirmity and, therefore, confirmed the conviction. But, as far as sentence is concerned, he reduced it from six months rigorous imprisonment to

three months rigorous imprisonment and the fine from Rs. 1,000/- to Rs. 200/- in default of payment of which, the petitioner herein would undergo

a term of one month rigorous imprisonment. With this modification in sentence, the appeal was dismissed, by the Chief Judicial Magistrate.

Against the dismissal of C.A. No. 169 of 1977 by the Chief Judicial Magistrate, Salem, the accused has now preferred the above Criminal

Revision Petition.

Learned Counsel Mr. T.S. Aruuachalam appearing for the petitioner has taken me through the judgments of the Courts below and also the

evidence of the case. His contention is firstly that the person, namely, Abdul Kadar, who gave information that the accused was selling arrack, has

not been examined in this case as to prove that the petitioner was selling arrack and, therefore, the case of the prosecution has to fail; and secondly

the content seized, viz., arrack, has not been sent for chemical analysis and in the absence of the report of the chemical analysis that the liquid

seized is arrack, the Courts below erred in convicting the accused on the sole oral evidence of P.W.2 that the seized material is prohibited alcohol.

It is clear from the facts of the case that P.W.2, who is the Sub Inspector of police along with P.W.1, went for detection of prohibition offences.

On their way at the road junction of Akkarapatti, they found one Abdul Kadar coming fully drunk. On information furnished by the said Abdul

Kadar as to wherefrom he had arrack, the party proceeded to Anaipillaiarkoil and found that the accused was selling arrack in a deksha marked

as M.O.1, and the portion of M.O.1 was marked as M.O.11. This M.O.11 was taken for the purpose of sending it to chemical analysis. The rest

of the arrack was destroyed. It is the evidence of the prosecution that P.Ws.1 and 2 saw the accused selling arrack to Palaniappan for a sum of

Rs. 2/-. This fact is spoken of, not only by P.W.2 but also by P,W.1 who is the Village Munsif who has no axe to grind against the accused.

Therefore, it can be easily presumed that the accused was found to be selling the alleged arrack as contended by the prosecution. Both the Courts

below have come to the correct conclusion as far as this point is concerned, and the contention of the counsel for the petitioner that the person

who gave the information about the sale of the alleged arrack has not been examined by the prosecution and the recovery of M.O.1 cannot be

true, is unsustainable. The stark fact remains that the prosecution has found that the accused was selling arrack to one Palaniappan in an aluminium

deksha. The non-examination of Abdul Kadar, who has given information to the police, does not vitiate the prosecution case.

The second point raised by the counsel for the petitioner is that the accused disputed the very object seized, namely, arrack in M.O.1 deksha

and the portion of which was taken in a bottle, M.O.11. The accused has denied that he was selling arrack or prohibited alcohol. The accused has

disputed that the arrack seized is prohibited arrack or alcohol. Under the circumstances, it is the duty of the prosecution to prove beyond

reasonable doubt that the material seized in a deksha is M.O.1 and the prosecution for that purpose ought to have sent the same for chemical

examination. This, the prosecution has failed to do.

The evidence of the Sub Inspector of Police (P.W.2) in his Chief-examination is

In his cross-examination, P.W.2, states

It is the contention of the learned counsel for the petitioner that the arrack that was seized was not the arrack of prohibited alcohol that was sold by

the accused and in the absence of clear proof by way of a chemical analysis report before Court that the arrack seized is prohibited alcohol or

arrack as such, the accused is not entitled to be convicted on the sole oral evidence of P.W.2. Though the trial Court found that P.W.2 has

experience and he cap identify that the alcohol seized is a prohibited alcohol, the learned Chief Judicial Magistrate has not discussed anything about

this in his judgment even though a ground has been taken in the grounds of appeal filed before him.

I am afraid that a presumption on the bare evidence of P.W.2 cannot be drawn by the prosecution against the accused in the absence of a

specific chemical analysis report, more particularly when the Prohibition Act is enforced stringently. When once the accused Questions or asserts

that what he was selling was opt arrack or prohibited alcohol, it is the duty of the prosecution to go a step ahead to prove or to show that the

material seized was nothing but arrack or prohibited alcohol. When P.W.2 has stated in his evidence that he has takes a portion of the alcohol in a

bottle, M.O.11 from the seized aluminium deksha and has sent the said M.O.11 for chemical analysis, why he has not marked the said chemical

report in Court or what has happened to the said report? This creates a doubt on the prosecution story. P.W.2 says that he has experience in

detecting alcohol. But, he has not said so in his chief-examination. Nor be has made clear in cross-examination as to how and what experience he

has, in detecting alcohol or arrack or as to how many years experience he has got in this field. All these things are not found and are wanting in

P.W.2''s evidence.

To sustain the conviction on the basis of the evidence given by P.W.2, the learned Public Prosecutor has cited a decision reported in Shri

Chand Batra v. State of U.P. 1975 L.W. (Crl.) 187 S.C. That was a case which arose under U.P. Excise Act 4 of 1910. The question that arose

in that case was whether the smelling test employed by the Excise Inspector, together with other circumstances, were enough to justify the

conclusion that the liquid recovered was illicit liquor of ""O.P."" strength. The second question was whether the Excise Inspector could be

considered an expert, whose opinion about the nature of the liquid found, was opinion evidence, admissible under S. 45 of the Evidence Act. In

that case, on the facts, the Supreme Court has held that the particular Excise Inspector could be treated as an expert within the meaning of S. 45 of

the Evidence Act, for, the Excise Inspector had, in addition to employing the smelling test, used all the other tests he could reasonably adopt. The

Supreme Court has further held that the Excise Inspector''s competence to give his opinion or the sufficiency of the tests adopted by him has not

been questioned in the trial Court. In that particular case, it was found that the Excise Inspector had put in 21 years of service as Excise Inspector

and had tested lakhs of samples of liquor and illicit liquor. Under those circumstances, the Supreme Court held that the Excise Inspector could be

treated as an expert within the meaning of S. 45 of the Evidence Act.

The judgment cited by the Public Prosecutor cannot help the prosecution in this case, for, in the present case, it is clear from the evidence of

the Sub Inspector of Police (P.W.2) that he has not deposed what kind of experience he has in testing alcohol and further why the report of the

chemical analysis had not been filed in Court in spite of the sample being taken for testing. When once it is questioned by the accused that the liquid

seized is not the prohibited variety, the prosecution ought to prove by clear and cogent evidence beyond doubt that the liquid seized is arrack. In

the absence of such proof, I am of the view that the prosecution lease cannot sustain and has to fail. Even though the Sub Inspector of Police has

taken the liquid and sent it for chemical examination, it surpasses one''s comprehension as to why such chemical report has not been filed in Court.

The evidence of P.W.2 that he is a person who has enough experience in detecting or locating or identifying that the liquid seized is prohibited

liquor is unsatisfactory. I may further state that there is nothing in the chief-examination of the Sub Inspector of Police (P.W.2) to suggest that he

had any special training which would enable him to say or embolden him to give a verdict that the liquid seized is arrack or prohibited alcohol.

There is nothing in the evidence to suggest that P.W.2 had necessary competence to decide that the liquid seized is an arrack or prohibited alcohol.

Under such circumstances, the prosecution case has to fail and the petitioner-accused has to be discharged. This revision, on this sole point, is

therefore, allowed and the petitioner-accused is acquitted from the charge under S. 4(1)(i) of the Tamil Nadu Prohibition Act. The fine, if paid, will

be refunded to the petitioner-accused.