In Re: Sethu

Swamikkannu, J.—This is a criminal revision case filed by the accused Sethu u/s 397, Cr.P.C, against the judgment dated 25th September,

1982 in C.A. No. 183 of 1981 on the file of the Additional Sessions Judge, North Arcot Division at Vellore, confirming the conviction of the

accused-revision Petitioner herein u/s 4(l)(b) of the Tamil Nadu Prohibition Act (Act 10 of 1937) and the sentence of rigorous imprisonment for six

months and a fine of Rs. 2,000 in default to undergo rigorous imprisonment for one month imposed on the revision Petitioner herein by the learned

Judicial First Class Magistrate, Vellore, by his order, dated 18th August, 1981 in C.C. No. 193 of 1981.

The case of the prosecution against the accused-revision Petitioner herein is that on 7th January, 1981 at about 2.30 p.m. at Melakuppam on

the southern side of the hill and about two miles away from Thethamparai channel the accused was found distilling illicit arrack by P.W.1 Lolan,

Sub-Inspector of Police attached to the Prohibition Wing, and the accused was arrested at that place From the fermented wash, five litres had

been retained and the rest was destroyed. The sample of the fermented wash and the distilled arrack were sent for Chemical analysis. Ex.P5 is the

report of the Chemical Analyst. Soon after Ex.P5 was obtained, the complaint was filed by the Sub-Inspector of Police, Prohibition Wing, Vellore,

against the accused herein before the trial Court. The trial court held that the accused is guilty of the offence with which he had been charged and

convicted him u/s 4(l)(b) of the Tamil Nadu Prohibition Act (Act 10 of 1937) and sentenced him to undergo rigorous imprisonment for six months

and also to pay a fine of Rs. 2,000 in default to undergo rigorous imprisonment for one month. Aggrieved by the above decision of the trial Court,

the accused-revision Petitioner herein preferred C.A. No. 183 of 1981 before the Court of the learned Additional Sessions Judge, North Arcot

Division at Vellore. The lower appellate Court on the question whether the prosecution has proved its case against the accused beyond all

reasonable doubt, came to the same conclusion arrived at by the trial Court and confirmed the conviction and sentence passed against the accused

by the trial Court. Aggrieved by the decision of the lower Appellate Court, the accused has come forward with this criminal revision case.

Mr K.R. Thiagarajan, learned Counsel for the revision Petitioner inter alia contends that both the Courts below have not properly appreciated

the evidence available on record and the confirmation by the lower Appellate Court of the conviction and sentence passed against the accused by

the trial Court is not correct and is not in accordance with law. Miss. Thamaraiselvi, the learned Advocate appearing on behalf of the Public

Prosecutor contends that the lower appellate Court had properly appreciated the evidence and had correctly confirmed the conviction and

sentence passed against the accused.

The point for consideration in this criminal revision case is:-

Whether there is any infirmity in the judgment of the Lower Appellate Court?

P.W.1, the Sub-Inspector of Police, attached to the Prohibition Wing, Vellore, has stated specifically in his evidence that he found the accused-

revision Petitioner herein distilling illicit arrack at 2.30 P.M. on 7th January, 1981 at Thethamparai Channel. P.W.I had also seized M.O.1 to

M.O.4 which were used for distilling illicit arrack by the accused during that time as per Ex.P1 mahazar. As no independent witness was available

at that place during that time, P.W.1 had obtained the signature of P.W.2 head constable in the said Ex.P1 mahazar. A careful perusal of the

evidence of P.W.2 shows that the same corroborates the evidence of P.W1 in all material particulars. It is true that there is no independent

evidence adduced on the side of the prosecution for proving that the accused had been engaged in distilling illicit arrack. But as had been pointed

out rightly by both the trial Court as well as the lower appellate Court, the persons who are engaged in distilling arrack would choose only a place

where there would not be any movement of the members of the public. In other words, a secluded place would only be chosen for distilling arrack.

Therefore, when it is stated by P.W.I that there was no independent witness available at the place of seizure of M. Os 1 to 4 from the accused, the

said evidence emanating from P.W.1 cannot be rejected. Further it is relevant to note that nothing has been elicited in the cross-examination of

P.W.1 to show that he has any motive to falsely implicate the accused-revision Petitioner herein in the case Thus on a careful and anxious scrutiny

of the entire evidence of P.W.1 which is amply corroborated by the evidence of P.W.2 together with the contents of Ex.P1 mahazar it can be

safely held that the prosecution has proved its case that while the accused was engaged in distilling illicit arrack he was arrested by P.W.1.

It is not in dispute that P.W.1 is the Sub-Inspector of Police attached to the Prohibition Wing at Vellore It is not shown as to how P.W.1 is not

empowered to investigate and register cases under the provisions of the Tamil Nadu Prohibition Act (Act 10 of 1937). Both the Courts below are

correct in rejecting the contention that P.W.1 is not empowered to investigate and institute proceedings against prohibition offences.

It. is contended on behalf of the revision Petitioner herein that during the time of the arrest of the revision Petitioner herein, the Additional

Superintendent of Police was available and the non-examination of the said Additional Superintendent of Police is fatal to the prosecution case. I

am unable to uphold this contention. From the evidence of P.W.1 it is not clear that during the time of the arrest of the accused by P.W.1 either the

Additional Superintendent of Police or the Inspector of Police was available at that place. Therefore the non-examination of the Additional

Superintendent of Police in this case on behalf of the prosecution is not fatal to the case of the prosecution. The contention raised in this regard on

behalf of the revision Petitioner cannot be upheld under the circumstances. Therefore the confirmation of the conviction of the accused u/s 4(1)(b)

of the Act by the lower appellate Court is correct.

So far as the sentence of six months rigorous imprisonment and the fine of Rs. 2,000 in default to undergo rigorous imprisonment for one month

imposed on the revision Petitioner herein u/s 4(l)(b) of the Act by the trial Court and in turn(sic) confirmed by the lower appellate Court, is

concerned, it cannot be said to be either excessive or severe since the said sentence is in conformity with the provisions of Section 4 of the Act

which also deals with the punishment that had to be imposed for the contravention of the provisions of Section 4 of the Act.

Section 4 of the Tamil Nadu Prohibition Act (Act 10 of 1937) reads as follows:

Prohibition of the manufacture of traffic in and consumption of liquors and intoxicating drugs:-

(1) Whoever

(a) imports, exports, transports or possesses liquor or intoxicating drug; or

(b) manufactures liquor or any intoxicating drug, or

(c) except in accordance with the rules made by the State Government in that behalf, cultivates the hemp plant (CANNOBIS SATIVA): or

collects any portion of such plant from which an intoxicating drug can be manufactured; or

(d) taps any toddy-producing trees or permits or suffers to be tapped any toddy-producing tree belonging to him or his possession; or

(e) draws toddy from any tree or permits or suffers toddy to be drawn from any tree belonging to him or in his possession; or

(f) constructs or works any distillery or brewery; or

(g) uses, keeps or has in his possession any materials, still, utensil, implement, or apparatus, whatsoever for the tapping of toddy or the

manufacture of liquor or any intoxicating drug, or keeps or has in his possession any materials which have undergone any process towards the

manufacture of the liquor or intoxicating drug or from which any liquor or any intoxicating drug has been manufactured; or

(h) bottles any liquor for purposes of sale; or

(i) sells liquor or any intoxicating drug; or

(j) consumes or buys liquor or any intoxicating drug; or

(jj) knowingly expends or applies any money in direct furtherance or support of the communications of any of the acts specified in Clauses (a) to

(j).

(k) allows any of the acts aforesaid upon premise in his immediate possession shall be punished (1) in the case of an offence falling under Clause

(a), Clause (b), Clause (f), Clause (g), Clause (h), Clause (i), Clause (jj), an offence falling under Clause (k) in so far as it relates to an act

specified in any of the clauses aforesaid, with rigorous imprisonment for a term which may extend to five years and with fine which may extend to

seven thousand rupees.

Provided that-

(a) for a first offence such rigorous imprisonment shall not be-

(A) less than six months in the case of any person other than a public servant;or(sic) (B) less than one year in the case of a public servant and such

fine shall not be less than two thousand rupees;

(b) for a second or subsequent offence, such rigorous imprisonment shall not be-

(A) less than one year in the case of any person other than a public servant; or

(B) less than two years in the case of a public servant and such fine shall not be less than three thousand rupees.

(ii. a) in the case of an offence falling under Clause (j) with rigorous imprisonment for a term which may extend to three years and with fine which

may extend to three thousand rupees;

(a) for a first offence, such rigorous imprisonment shall not be-

(A) less than three months in the case of any person other than a public servant; or

(B) less than six months in the case of a public servant and such fine which shall not be less than one thousand rupees;

(b) for a second or subsequent offence, such rigorous imprisonment shall not be-

(A) less than six months in the case of any person other than a public servant; or

(B) less than one year in the case of a public servant and with fine which shall not be less than two thousand rupees:

(ii. b) in any other case with rigorous imprisonment for a term which may extend to three years and with fine which may extend to three thousand

rupees.

Provided that nothing contained in this Sub-section apply-

(i) to any act done under, and in accordance with the provisions of this Act or the terms 0r(sic) any rule, notification, order licence or permit issued

thereunder, or

(ii) to the possession, sale, purchase, use or consumption of duty-paid medicinal or toilet preparations(sic) for their bona fide medicinal or toilet

purposes.

(1-A) Where in the case of an offence falling under Clause (a) Clause (b) or Clause (i) of Sub-section (1), the liquor or any intoxicating drug

involved contains any ingredient which is likely to cause death or grievous hurt to the consumer, then the offender, on conviction, shall be punished;

(i) if death has ensued due to its consumption, with rigorous imprisonment for life and with fine which shall not be less than five thousand rupees;

and

(ii) in any other case, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to seven thousand

rupees. Provided that such rigorous imprisonment under Clause (ii) shall not be-

(A) less than five years in the case of any person other than a public servant; or

(B) less than seven years in the case of a public servant and such fine shall not be less than five thousand rupees.

(2) it shall be presumed until the contrary is shown:-

(a) that a person accused of any offence under Clauses (a) to (jj) of Sub-section (1) has committed such offence in respect of any liquor or

intoxicating drug or any still, utensil, implement or apparatus whatsoever for the tapping of toddy or the manufacture of liquor or any intoxicating

drug or any such materials as are ordinarily used in the tapping of toddy or the manufacture of liquor or any intoxicating drug or any material which

have undergone any process towards the manufacture of liquor or an intoxicating drug has been manufactured, for the possession of which he is

unable to account satisfactorily; and

(b) that a person accused of any offence under Clause (k) of Sub-section (i) has committed such offence if an offence is proved to have been

committed in the premises in his immediate possession in respect of any liquor or intoxicating drug or any still, utensil, implement or apparatus

whatsoever for the tapping of toddy or the manufacture of liquor or any intoxicating drug or any such material as are ordinarily used in the tapping

of toddy or the manufacture of liquor or any intoxicating drug or any material which have undergone any process towards the manufacture of liquor

or any intoxicating drug or from which any liquor intoxicating drug has been manufactured.

A careful reading of the provisions of Section 4 of the Act dealing with the prohibition of the manufacture of traffic in and consumption of

liquors and intoxicating drugs shows that the said provision of the Act contemplates specific minimum sentence and fine to be imposed on the

person found guilty under the provisions of the said Act, such as the sentence of imprisonment and fine that had to be imposed on a person found

guilty for a first offence or for a second or subsequent offence. A distinction has also been made with reference to imposition of the sentence on

persons who are public servants and persons who are not public servants who have committed the offence under this section. In the instant case,

the conviction of the accused-Appellant is u/s 4(1)(b) of the Act, viz., for the manufacture of liquor, viz., illicit arrack, the accused-revision

Petitioner herein had been found guilty. The sentence that had to be imposed as per the mandatory provision for this offence, viz., Section 4(1)(b)

of the Act is rigorous imprisonment for a term which may extend to ten years and fine which may extend to Rs. 7,000. There is a proviso to

Section 4 of the Act which provides that for a first offence, such rigorous imprisonment shall not be (A) less than six months in the case of any

person other than a public servant, or (B) less than one year in the case of a public servant and such fine which shall not be less than two thousand

rupees. The proviso also provides minimum punishment that had to be imposed for the person found guilty under Clause (a), Clause (b), Clause

(f), Clause (g), Clause (h), Clause (i), Clause (jj), or an offence falling under Clause (k). In the instant case, we are concerned with the first offence

since it is not on record that it is for the second or subsequent offence !he accused revision Petitioner herein had been found guilty. As already seen

the mandatory provision relating to the punishment contemplating the period of punishment that had to be imposed on the person found guilty which

is rigorous imprisonment for a term which may extend to five years and fine which may extend to Rs. 7,000. The proviso incorporated in the said

section specifically and mandatorily provided that for the offence such rigorous imprisonment shall not be less than six months in the case of any

person other than a public servant or less than one year in the case of a public servant and such fine shall not be less than Rs. 2,000. In the instant

case, the accused-revision Petitioner is not a public servant. Therefore the minimum punishment of rigorous imprisonment for six months and fine of

Rs. 2,000 in default to undergo rigorous imprisonment for one month is in accordance with the provisions of Section 4(1)(b) of the Act, read with

the provision relating to the punishment incorporated in the very same section together with the proviso in the said section. It is a well recognised

principle of law that when a sentence had been statutorily provided and incorporated in the Act, for the offence distinguishing the first offence and

the second offence and the category of persons found guilty, viz., a public servant and an ordinary individual, it is but necessary that the minimum

sentence contemplated by the provision has to be imposed taking into consideration the relevant aspects contemplated by the said provision

relating to punishment. In such cases of specific provision relating to the minimum punishment that had to be imposed, when the legislature has

thought fit and incorporated a provision therefore, it can hardly be said that the Court has got any discretion to further reduce the sentence other

than a minimum sentence contemplated by the said provision of the special enactment such as Tamil Nadu Prohibition Act (Act 10 of 1937).

It is represented by the learned Counsel for the revision Petitioner that the sentence of imprisonment imposed by the lower Courts on the

revision Petitioner may be reduced to the period already undergone. A reduction of statutorily provided punishment of imprisonment or fine cannot

be (sic) made other than the prescribed minimum period of imprisonment or minimum fine contemplated by the provisions of the special enactment

as in Section 4 of the Tamil Nadu Prohibition Act, 1937.

When once the legislature has provided a statutory minimum of punishment with reference to an offence contemplated by a Special enactment,

it is not open to a Court to further reduce the minimum sentence of imprisonment by using the discretion on the basis of extenuating circumstances

available in a particular case especially when the enactment itself provides for a general period of imprisonment of five years and a fine of Rs.

7,000 and restricting the same to a period of rigorous imprisonment for six months and a fine clarifying and also distinguishing the accused as an

ordinary person and public servant Under these circumstances, both the conviction and sentence passed against the accused-revision Petitioner

herein are confirmed. There is no infirmity in the judgment of the lower appellate Court. Hence this Criminal Revision Case is dismissed.