Pattali vs State

David Annoussamy, J.—This is a revision cast against conviction and sentence. The crux of the indictment against the accused-petitioner herein is as follows:-- The accused was working as sweeper-cum-porter, Gomangalam railway station. On 21.2.1981 the accused came in a drunken mood and asked permission from P.W. 1, the Assistant Station Master, Ottakal, to talk through phone. When the permission was refused by P.W. 1, the accused caught hold of the shirt of P.W. 1 and took his chappal to beat him and ho was prevented from beating P.W. 1 by Nagarajan, Gandhi, Veerasami Gounder and Balasubramaniam, who were present there. Thereafter, the accused threatened P.W. 1 slating that he would kill him P.W. 1 then closed his room and sent intimation to DOS Madurai, S.I. Railway police Palani and Railway Protection force, Pollachi. One Thiru Arunachalam was then working in the Railway force, Patani. Upoo receipt of the report given by P.W. 1 he went to Thippampatti, appended the accused and sent him for clinical examination. After investigation, a report was filed under S. 173, Crl.P.C. to the effect that the accused appeared to have committed offences punishable under Ss. 448, 353, 355 read with Ss. 511 and 506(II), I.P.C. and S. 4(1)(i) of the Tamil Nadu Prohibition Act. The charges were framed accordingly by the trial court, which found that the accused was guilty of offences under S. 355, I.P.C. and S. 4(i)(j) of the Tamil Nadu Prohibition Act (hereinafter referred to as the Act) and sentenced him accordingly. On appeal, the learned Sessions Judge, Madurai North, at Dindigul, acquitted the accused of the offence under S. 355, I.P.C. and confirmed the conviction under S. 4(1)(j) of the Act and also sentence of six months imprisonment and the fine of Rs. 1,000 for the said offence.

It is first pointed out by the Learned Counsel for the petitioner-accused that the courts below have dealt with the accused on the misconception that he was a Government servant and have imposed on him the minimum punishment contemplated under S. 4 of the Act. He argued that the word ''public servant'' had a very restricted meaning in the Act. It is defined as follows

3(14-a) ''Public servant'' means

(i) any police officer, or

(ii) any prohibition officer; or

(iii) any other officer of the State Government authorised by or under this Act to exercise all or any of the powers or perform all or any of duties under this Act;

Obviously, the accused does not fall under any of the categories listed under the above section and is therefore not a ''public servant'' He would be liable for punishment only as an ordinary citizen.

As far as the conviction is concerned, the Learned Counsel for the petitioner accused contended that the fact of consumption of liquor contemplated under S. 4(1)(j) of the Act was not proved. In this connection he placed reliance on a decision of this Court in the Public Prosecutor v. Perumal and another 1948 M.W.N. Cr. 14. That short judgment in that case is worth reproducing below

The accused in this case was charged with an offence under S. 4(1)(j) of the Madras Prohibition'' Act. There was no direct proof that he consumed liquor in any area in which the Act was in force.

The trial Magistrate convicted him on the ground that he pleaded guilty but I suspect that what he admitted was that he was found in a drunken state in the prohibited area, which was all that was stated in the charge sheet.

On that admission it would be quite legal for a court to convict the accused if there was evidence on record that having regard to the distance between the place where he was found and the nearest place in a non-prohibited area the accused must have consumed the liquor within the prohibited area itself. In this case, there was no such evidence.

In the absence of such evidence I do not think it proper that the accused should be convicted on his admission that he was found drunk within a prohibited area.

The Learned Counsel appearing on behalf of the prosecution, contended that though the factum of consumption itself is not proved, the circumstance that along with the smell of alcohol, there were other symptoms such as redness of eyes, pupils being dilated, incoherent speech and unsteady gait would lead to the conclusion that the accused had consumed the prohibited liquor as held in the Public Prosecutor v. Gangadhara Shetti 1955 M.W.N. Cr.249. He also placed reliance on the decision in Mohamed Sultans. State 67 L.W. 646 : 1954 M.W.N. Cri.151 wherein it was held that where the doctor examined the accused and found the following symptoms: (1) smell of liquor in the mouth;(2) pupils dilated; (3) eyes red, sod (4) pulse excited, it was right to conclude, taking all toe symptoms Into account, that the accused had consumed liquor. A perusal of these decisions would only disclose that the essential ingredients of offence under S. 4(1)(j) of the Act is the fact of consumption of liquor in the prohibited area and that, such fact, like any other fact, can be either proved by direct evidence or by circumstantial evidence. In other words, either the accused person should have been seen consuming liquor in a prohibited area and in that case ocular evidence should be produced or from the examination of the accused that there should be an irresistible conclusion that he had consumed alcohol within the prohibited area. In the present case, there is no direct evidence. The prosecution relied only on the evidence of the doctor examined as P.W. 3. P.W. 3 found when he examined the accused Pattalai on 22.2.1981 at 1-30 p.m. that the accused was normal in every respect but he was able to notice the email of arrack. He was of the opinion that the accused consumed arrack on the basis of the report of the chemical examination, Ex. P3. In fact Ex. P3 discloses that the blood contained 109-1 milligrams percent of w/v of Ethyl alcohol and in the urine 287.2 milligrams per cent w/v of Ethyl alcohol was detected. Therefore, the circumstantial evidence is to the effect that the accused had consumed alcohol; but the prosecution has failed to show that such consumption was in any prohibited area. In fact, the accused was apprehended in Thippampatty which is not tar from Kerala Border. The investigation should have assessed the approximate time of consumption and shown has during that period, the accused should have in all probability been within ''the prohibited area of Tamil Nadu. In this respect, there is no evidence whatsoever. As pointed out in the decision relied upon by the accused and referred to above, viz, in The Public Prosecutor v. Perumal and other 1948 M.W.N. (Crl.) 14, there should be evidence on record that the consumption took place in a prohibited area. It is also worth noting that in this case, the (sic) officer, though in his final report has also (sic)eluded S. 4(1)(j) of the Act, has not stared of his report that the accused consumed accused consume(sic) any where in the State. He rested content (sic) mentioning that the accused was in a (sic) mood. Further, the Government has (sic) an order vis., G.O.Ms. 192, Home (sic) Department dt. 25.1.1980 remitting the (sic) portion of sentence of for all persons (sic) and sentenced under S. 4(1)(j)(sic) and it has further directed that all (sic) the accused charged under the above (sic) the Act and pending trial be (sic) Such being the policy of the Government (sic) wards the prosecution of offences (sic) section of the Act, when a case is (sic) brought before the court for the (sic) of the same offence, one would expert a (sic) plete and adequate proof of the (sic) of the offence. It is not so in this case in fact, from the report of the(sic) Officer this offence is only an (sic) was mainly prosecuted for offence (sic) Ss. 448, 353, 355 read with S. 511 and (sic) I.P.C. The fact that he was in (sic) mood was only mentioned as the (sic) making probable the commission of the (sic) offences. At any rate, in the percent (sic) since the fact of having consumed (sic) within the prohibited area has not been proved beyond reasonable doubt the conation cannot stand.

It was contended by the learned (sic) appearing on behalf of the prosecution that it was the burden of the accused to some for ward with a case that he consumed also (sic) outside the prohibited area and that in the absence of such plea and proof in report of the plea, he should be presumed to (sic) committed the offence. In this connection (sic) pointed out that the accused has not (sic) anywhere, not even when he was (sic) lastly under S. 313, Crl.P.C. that he (sic) alcohol outside the prohibited case. The contention if hard to accept. It is a (sic) established principle that the (sic) should stand entirely on its own legs. Therefore, if the prosecution has proved satisfactorily that in all probability the accused consumed alcohol within the prohibited area, then the burden would shift on to the accused to disprove that fact by putting forth his defence and proving the same. In this case, the accused pleaded not guilty and his plea is all embracing and therefore amounts to denial of each and every circumstance which would constitute the offence, He relies to that effect on the decision of the Supreme Court in State of Andhra Pradesh v. Madiga Doosandu and others 1967 L.W.Crl. 103.

The Learned Counsel appearing on behalf of the prosecution placing reliance on the decision in the Public Prosecutor v. Gangadhar Shetti 1955 M.W.N. (Crl.) 249 contended that the onus lies on the accused to show that he had consumed liquor in any non-prohibited area. In that decision, the Court came to the conclusion that the tact of consumption was adequately proved by circumstantial evidence; the case of the accused was that the smell of liquor may be due to any other drug and that the symptoms noticed may be due to any other causes and the court held that since the fact of consumption was adequately proved by corresponding symptoms then the onus shifted on to the accused to show that he had consumed such other liquid which would produce the same symptoms. But in this case, the prosecution has not produced any proof whatsoever to show that the consumption could have been only within the prohibited area and in respect of that fact, as long as the prosecution has not adduced adequate proof, the burden will not shift on to the accused.

It was lastly argued that as per S. 4(2) of the Act, the accused should be presumed to have committed the offence unless he proves the contrary. That section reads as follows

(2) It has been presumed until the contrary is shown:-(a) that a person accused of any offence under clauses (a) to (j) of Sub-S.(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 manufactured, for the possession of which be is unable to account satisfactorily; and

(b) that a person accused of any offence under clause(k) of sub-S.(1) has committed such offence is proved to have been committed in 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 or 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 under-gone any process towards the manufacture of liquor or any intoxicating drug or from which any liquor intoxicating drug has been manufactured.

Formerly this section applied only for offence under Cls.(a) to (j); by Amendment Act 9 of 1970 Cl.(jj) Was also added in the section. It is to be noted that the import of this section was considered in detail in the decision of this Court in Public Prosecutor v. Chinnappa Pujari 1951 M.W.N (Crl.) 49. this Court after going into all the aspects of the problem has come to the conclusion that the presumption will apply only to the tact of buying liquor under S. 4(1)(j) and not to the fact of consumption. In fact, when against the presumption of innocence the presumption of guilt is arryed, there should be an opportunity given to the accused to account satisfactorily and he can account satisfactorily as per the section only for possession. As the fact of consumption does not entail any possession the section would be practically impossible to apply for an offence relating to consumption. This is the ratio of the decision referred to above and in that decision it has been also explained how this S. 4(1)(j) of the Act has been inadvertently incorporated in S. 4(2) of the Act. I therefore, find it difficult to accept the plea of the Learned Counsel for the Prosecution that it is the burden of the accused to take the plea that he has not consumed alcohol in the prohibited area and to prove it.

In the result, the criminal revision case is allowed and the conviction, and sentence are set aside.