In Re: Ponnaiah

Janarthanam, J.—This revision is directed against the order dated 15th July, 1985 in C.A. 117 of 1985 on the file of the Sessions Judge, Tirunelveli, dismissing the appeal and confirming the conviction and sentence imposed by the learned Judicial First Class Magistrate (Prohibition) Tirunelveli, in C.C. 53 of 1985.

The Petitioner (A2) and Anr. (Al) were prosecuted before the court below for an offence u/s 4(l)(i) of the Tamil Nadu Prohibition Act, and it convicted them thereunder and sentenced each of them to rigorous imprisonment for six months and also to pay fine of Rs. 2,000 in default to undergo rigorous imprisonment for a month. As against the conviction and sentence, the Petitioner (A2) preferred an appeal in C.A. 117 of 1985 on the file of the Sessions Judge, Tirunelveli. The appeal was dismissed, confirming the conviction and sentence, giving rise to this revision.

The learned Counsel appearing for the Petitioner would contend that the appreciation of the evidence in the case is such as to choke the conscience of the court warranting interference in revision. The prosecution in fact in proof of its case examined P. Ws. 1 and 2 police officials and no independent witness had been examined. The testimony of P. Ws. 1 and 2 is to the effect that the Petitioner poured arrack in the glass tumbler (M.O.2) while A-l was receiving the money from an unknown person. They would further say that on the sight of the police officials, the unknown person ran away from the scene, and the Petitioner and A-l remained there without making any attempt to run away from the scene. Their evidence would further disclose that these two accused were apprehended and thereafter M. Os. 1 and 2 bottles and M.O.3 glass were seized under mahazar besides seizing the money viz, sale proceeds from A-l. It is not known as to why when the person who consumed the liquor ran away from the scene of occurrence the persons viz, A-1 and A-2 who were not under the influence of liquor remained stationary in this spot, and had not made an attempt to run on the sight of the police officials. This is not in accordance with the course of conduct and probabilities reflecting on the reality of the situation. The evidence on this aspect by P. Ws. 1 and 2 is not believable and is not beyond suspicion. Besides the same being against the normal course of conduct, the court cannot at all give any weight to such evidence. This apart, the place of occurrence is not a forlorn and forsaken place, so that independent witnesses were not available in the place. The occurrence virtually happened in a busy locality near the Perumal temple where there are number of homes, as candidly admitted by P. Ws. 1 and 2 in their evidence. In such circumstances, the prosecution could have made its case rest on a surer foundation. The occurrence had not been witnessed by independent witnesses of the locality and hence the case of the prosecution would not be above suspicion. In the circumstances of the case, I am of the view that the non-examination of independent witnesses from the locality throws a lot of doubt in the version as projected by the police officials, P. Ws. 1 and 2, especially when the occurrence had happened in broad daylight at 5. p.m. In an identical situation, like the one on hand, a learned Judge of this Court, in Abbas Saheb In re, 1965.1. M.L.J. 381, held as follows:

Where the only evidence for the prosecution is that of the Sub-Inspector of Police who seized the contraband and the time and place where the alleged seizure took place was such that there should have been several persons available to witness the seizure, but no such mahazar for the seizure was prepared, the accused in a prosecution under the Prohibition Act. should at least be entitled to the benefit of the doubt regarding the genuineness of the alleged seizure.

In the circumstance stated above, I am of the view, that the Petitioner is entitled to the benefit of doubt., regarding the genuineness of the occurrence and the alleged seizure, in the absence of evidence from independent quarters.

In the result, the revision is allowed and the conviction and sentence are set aside. The fine amount, if already paid, is also ordered to be refunded.