In Re: Sambandam

B.S. Somasundaram, J.—Sambandam, the appellant herein, was convicted by the VI Presidency Magistrate, Saidapet, in C.C. No. 7129

of 1967 for offences u/s 4 (1) (a) of the Madras Prohibition Act and u/s 10 (a) of the Government Order No. Ms. 3031 (Home) dated 1st

November, 1958. Under the first count he was sentenced to undergo rigorous imprisonment for three months with a fine of Rs. 200 and for the

second offence he was sentenced to pay a fine of Rs. 100. The prosecution arose in the following circumstances. Thiru R.K. Nayar, P.W. 1, the

Sub Inspector attached to the North Raiding Prohibition Party got information, at the junction of the Mount Road and Vijayaraghavachari road that

some person was moving on the road with contraband liquor. He proceeded for some distance, in the road, apprehended the appellant and

recovered from him, the tin M.O. 1 which contained 17 bottles of which seven were brandy and 10 were bottles of tincture zingiberis mitis,

(M.Os. 2 to series) under mahazar, Exhibit P-1, attested by his head constable and another constable. The case was charged. The appellant

pleaded not guilty to the charges and staged that he had no brandy or zingiberis bottles with him. Believing the evidence of P.W. 1, the learned

Magistrate has convicted the appellant. The correctness of this conviction is now canvassed in the present appeal. The conviction has proceeded

on the uncorroborated testimony of the Sub-Inspector, P.W. 1 who claims to have apprehended this appellant at a point very near the junction of

Mount Road and Vijayaraghavachariar Road, which is a the time of the seizure. Yet not even one person has been cited as a witness for proving

the arrest or the recovery of these bottles. Exhibit P-1 is the mahazar. P.W. 1 could have at least examined the Head Constable who has attested

It. When a mahazar has been prepared and attested by witnesses it is desirable and in some cases it may even be necessary from the stand point of

the prosecution to examine at least one such witness in addition to the police officer who actually seized the materials. Vide Muthukrishnan v. State

(1961) M.W.N. 706 : (1961) M.W.N. 189. Next it is contended that the prosecution has not proved that the bottles which were seized contained

liquor within the mischief of the Prohibition Act. The prosecution in cases of this kind must establish by evidence that the bottles contained

prohibited liquor. In other words, the prosecution should establish that the commodity in question comes under one or other of the various items

described in the definition of liquor in the Act. Merely trusting to the smelling sense of this Prohibition Officers, and basing a conviction, on a

opinion expressed by those officers under the circumstances cannot justify the conviction of the accused State of Andhra Pradesh Vs. Madiga

Boosena and Others, . Even this evidence is not available in the present case and except saying that the bottles seized with the seals were bottles of

brandy and tincture zingiberis mitis, the Sub-Inspector has not said anything else. The conviction is not correct. Both the conviction and sentences

are set aside. The appellant is acquitted of the offences under which he stands convicted. The fine if collected shall be refunded to him. the bail

bond shall stand cancelled.