Masilamani vs The Inspector of Police (Law and Order) West Thanjavur Police Station, Thanjavur

R. Balasubramanian, J.—The indictment against the revision Petitioner is that he was found in a state of intoxication and thereby guilty u/s 4-

A of the Tamil Nadu prohibition Act, 1937. The trial Court found him guilty for the said offence and sentenced him to undergo rigorous

imprisonment for a period of six months together with a fine of Rs. 1,000/- in default to undergo a further rigorous imprisonment of 60 days. The

judgment of the Deputy Collector (Training) cum Special Judicial Magistrate in C.C. No. 3 of 1985 was confirmed on appeal by judgment dated

21.8.1987 in C.A. No. 4 of 1987 on the file of the Court of Sessions, Thanjavur. The correctness of the judgment referred to above is questioned

in this revision before this Court.

The revision Petitioner, who is the sole accused, is a constable by employment and the he was found in a public place at the early hours of

6.10.1985, viz. 2.30 a.m. is not in dispute. The only question that survived for consideration before the Courts below and which also survives

before this Court is whether the offence u/s 4-A of the Tamil Nadu Prohibition Act, 1937 (herein after for convenience''s sake referred to as ''the

Act'') is made out.

That at 2.30 a.m. on 6.10.1985 the accused was arrested while he was found in the office of the Prohibition and Enforcement Wing situated in

the L.I.C. Colony in Thanjavur is not disputed. However, though the prosecution contend that the accused was found in the state of intoxication

which according to the prosecution is due to excessive consumption of alcohol, it is the case of the defence that he had not taken any prohibited

alcohol, but he had consumed only medicinal preparations, as prescribed by his Doctor, which contained alcohol. According to him, consumption

of medicinal preparation containing alcohol is not an offence under the Act. In support of the case, the prosecution examined P.W.I, the Police

Officer who arrested the accused; P.W.2 an independent witness who was sleeping by the side of the accused in the office of the Prohibition and

Enforcement Wing, Thanjavur; P.W.3 Doctor attached to the Government Hospital at Thanjavur who examined the accused at 3.10 a.m. on

6.10.1985 and gave Ex.P.2. the certificate of drunkenness; P.W.4 the Assistant Chemical Examiner at Thanjavur for having examined the blood

and urine of the accused collected from him and giving a certificate Ex.P.3, evidencing blood and urine containing alcohol and P.W.5 the

Investigating Officer who laid the charge sheet. On the side of the defence, a Doctor working in the Hospital under the control of Kulithalai

Panchayat was examined.

P.W.1 in his evidence before the Court Stated that at the time of arresting the accused his breath was smelling arrack; his gait was not steady

and he was not able to talk coherently. On this basis, he was taken to the hospital where he was examined by P.W.3. P.W.3 in his evidence states

as follows:

Sluggish reaction to light; eyes congested; talk incoherently; unable to walk steadily; unable to recollect past events.

Blood and urine taken for analysis. 5 ml. blood and 10 ml. urine was taken for analysis and sent subsequently for chemical analysis to the Assistant

Director, Forensic Laboratory, Thanjavur. Ex.P.2 is the certificate issued by him, and in that he had opined that the accused consumed liquor and

was under its influence and in a state of intoxiction. Thus, P.W.3 proved the examination of the accused and the issuance of Ex.P.2 certificate. It

was suggested to P.W.I among other things that the accused has been falsely implicated in this case and that the accused had not consumed

alcohol of any type. P.W.3 was cross-examined at length and in that he had admitted in the cross- examination that the accused was able to

recollect past events and he was able to appreciate the objects and he had noted the same in Ex.P.2. Coming to the taking of blood and urine,

P.W.3 had deposed that soap solution was used as sterilizer while taking blood sample. He also admitted that when a human-being is sick, it is

possible for Acetone, Ether and Paraldehyde being present in the system. He would also candidly admit that in the blood sample if Acetone, Ether

and Paraldehyde are present and no preservatives are added then there will be fermentation. If preservatives are added no fermentation would

take place. But, however he had not spoken anywhere in his evidence that preservatives were added in the samples while die samples, after being

taken, were stored. He had also admitted in his evidence that there are some medicinal preparations containing alcohol and that if medicinal

preparations containing more than 10% of alcohol V/V is consumed in large quantity it would also cause the symptoms similar to those that can be

found on one consuming arrack. It is his further categorical admission that the symptoms he mentioned in Ex.P.2 certificate are not at all conclusive

on the point that the liquor consumed was of prohibited variety.

4-A. P.W.4 the Assistant Chemical Examiner who had issued Ex.P.3 certificate states that in the blood of the accused 0.05% W/v Ethyl Alcohol

and in the urine of the accused 0.06% W/v Ethyl Alcohol were detected. Ex.P.3 reveals that. He would also admit that when no preservative are

added and air is present in the sample bottle containing blood there are chances of fermentation and if there is fermentation, there is likelihood of

presence of more alcohol and less of alcohol content also. He would admit that the samples were examined on 20.11.1985.

On these facts and the evidence available on record Mr. V. Gopinath, learned Senior Counsel appearing for the revision Petitioner mainly

canvassed his arguments on the following point; The prosecution had failed to prove that the accused had consumed prohibited liquor and

therefore, in the absence of such proof, the conviction of the accused u/s 4-A of the Act is unsustainable. He would also submit further that there is

no evidence to show in this case that preservatives were added while the blood was stored for analysis and therefore, the possibility of

fermentation and thereby increasing the alcohol content cannot be ruled out. He would also submit that the accused had consumed medicinal

preparation, viz., Dasamoo-larishtam which contains alcohol at 6.12% V/V as spoken to by D.W.I and in view of the admission of P.W.3 that if

large quantity of medicinal preparation containing more than 10% alcohol V/V is consumed symptoms found similar to those found in the present

case will be caused, it cannot be said that the accused had consumed only prohibited variety of liquor and he was under intoxication.

On the contrary, Mr. Shanmugasundaram, learned Public Prosecutor appearing for the State would contend that the prosecution need not prove

that the accused had consumed prohibited variety of liquor, in view of Section 41-B of the Act which raises the presumption of liquor being of an

illicit variety. Secondly, he would state that the presumption created u/s 41-B of the Act would also apply to a trial for an offence u/s 4-A of the

Act.

I have carefully considered the arguments of both the learned Counsel and went through the records.

Firstly, I will deal with the question of the presumption created statutorily u/s 41-B of the Act. Under this section, in any trial for an offence

punishable u/s 4(1)(j) of the Act if it is proved that a person has consumed liquor or any intoxicating drug, it shall be presumed until the contrary is

proved that such liquor or intoxicating drug is an illicit variety. Even at the outset it is clear that this statutory presumption is available only in the

case of trial for an offence punishable u/s 4(1)(j) of the Act. The case on hand, is not a trial for an offence u/s 4(1)(j) of the Act, but, on the other

hand, the trial is for an offence which is distinct, viz., 4-A of the Act. The argument for the State is that though the offence u/s 4-A of the Act is not

mentioned in Section 41-B of the Act, yet it can be extended for the trial of the said offence also is not acceptable. Prohibition Act is a Penal

Statute. Rules of interpretation of statute requires the statute enacting an offence or imposing the penally to be strictly construed. The rule of

interpretation always exhibits a preference to the liberty of the subject and in a case of ambiguity enables the Court to resolve the doubt in favour

of the subject and against the Legislature which had failed to express itself clearly. Reference may be made in this regard to decisions in Dilip

Kumar Sharma and Others Vs. State of Madhya Pradesh, and State of West Bengal and Others Vs. Swapan Kumar Guha and Others, . The two

Judgments of the Supreme Court under the Heading ""Strict Construction of Penal Statutes General Principles"" in the book on Principles of

Statutory Interpretation by Justice C.P. Singh VI Edition 1996 are born in mind, then, it is not possible to accept the argument advanced by the

learned Public Prosecutor that the presumption created under 41-B of the Act in respect of an offence punishable u/s 4(1)(j) of the Act should be

extended to a trial for a offence u/s 4-A of the Act as well. The Legislature could have very well mentioned that the said statutory presumption

would also apply to a trial in respect of an offence u/s 4-A of the Act. When there is a positive omission of a reference to Section 4-A of the Act,

it is not for this Court to extend the presumption enacted u/s 41-B of the Act to a trial for an offence u/s 4-A of the Act. Therefore, I decide that

the presumption created u/s 41-B of the Act would not apply to the trial on hand and rightly the learned trial Judge held so. But unfortunately the

appellate Judge had fallen back on the presumption created u/s 41-B of the Act to hold the accused guilty in this case.

If the presumption is not available, then the question that follows is whether the prosecution had proved that the accused had consumed

prohibited liquor. The evidence available in this case did not disclose that the accused had consumed prohibited variety of liquor and there is

paucity of evidence in this regard. The admission of P.W.3 that the symptoms noted by him in Ex.P.2 certificate are not conclusive proof on the

point that the liquor consumed as on a prohibited variety comes in aid of the accused.

On yet another point also, the prosecution failed. P.W.3 had been cross-examined on the aspect of the samples getting fermented. He had

categorically admitted that if preservatives are added, then there will be no fermentation and if they are not added, there would he fermentation.

P.W.4 also admits that the absence of preservatives would accelerate fermentation. There is no evidence in this case to show that preservatives

were added to the sample. The samples were analysed after a lapse of nearly 46 days. There there is a lingering doubt in my mind which makes me

think that the possibility of fermentation setting in cannot be rule out. Though, there is no provision under the Act or the Rules framed under it about

the procedure to be adopted in taking the sample, yet the argument of learned Senior Counsel appearing for the Petitioner that if there is no proof

that preservatives are added, this Court should hold that there should have been fermentation showing excessive quantity of alcohol deserves to be

accepted. Learned Counsel in support of his argument cited a judgment of this Court in S. Chandrasekharan and another In re (1972 L.W. Cri.

180). On the same lines as indicated by the learned Senior Counsel appearing for the Petitioner, this Court had held in that case that in the absence

of proof that preservatives have been added in the sample, it is not possible to very much rely upon the blood test to hold that the Petitioner had

consumed arrack.

The accused had pleaded and also proved that he had consumed medicinal preparations, containing large quantity of alcohol. But, he had not

stated anywhere at what point of time he had consumed the medicinal preparation and how much he had consumed. D.W.I 1 categorically

admitted that though the consumption of medicinal preparations containing alcohol initially would indicate presence of alcohol in the human system,

yet it would subside as hours progress. The accused was arrested at 2.30 a.m. and he was examined by the Doctor at about 3.10 a.m. Therefore,

in the face of the evidence of the Doctor examined as D.W.I, it cannot be safely said that alcohol detected in the samples collected from the

accused was due to the consumption of the medicinal preparation viz., Dasamoolarishtam. Further, as I have held earlier, the prosecution failed to

prove that the accused had consumed prohibited variety of liquor and necessary precatutions were taken to preserve the samples taken eliminating

fermentation and so it necessarily follows that the prosecution must fail. In a trial for an offence u/s 4-A of the Act, the prosecution must definitely

and necessarily prove that the accused had consumed liquor or any intoxicating drug. Mere consumption of liquor or intoxicating drug would not

satisfy the requirements of Section 4-A of the Act. But the other symptoms also have to be proved. In this case, the prosecution had proved the

other symptoms necessary to hold that the accused was found in a state of intoxication in a public place. However, they failed to prove that such

intoxication was due to consumption of any prohibited variety of liquor or drug. It is possible to reach the state of intoxication due to several causes

and not necessarily due to consumption of liquor or intoxicating drug. In this case the prosecution had not proved that the accused was found in a

state of intoxication, due to consumption of prohibited variety of liquor or intoxicating drug.

For the reasons stated above, I hold that the prosecution had not proved its case beyond reasonable doubt and failed in toto. The accused is

entitled to be benefit of doubt and accordingly, it is given to him. In the result, the revision is allowed. The conviction and sentence of imprisonment

imposed on the Petitioner by judgment dated 20.2.1987 in C.C. No. 3 of 1986 on the file of the Deputy Collector (Training cum Special Judicial

Magistrate, Thanjavur and confirmed by judgment dated 21.8.1987 in C.A. No. 4 of 1987 on the file of the Court of Sessions, Thanjavur is set

aside and the accused is acquitted. The fine amount, if any, paid is directed to be refunded to him.