Simson and 3 Others vs State Inspector of Police, Tuticorin South

M.Karpagavinayagam, J.—This revision has been preferred by the Petitioners against the judgment in C.A. No. 86 of 1992, dated 16-11-1992 on the file of the Sessions Judge, Tuticorin, confirming the conviction and sentence imposed by the Judicial Magistrate No. 1, Tuticorin in S.T.R. No. 1774 of 1991, dated 17-3-1992, sentencing each of the Petitioners to pay a fine of Rs. 200/- for the offence u/s 4(1)(i) of the Tamil Nadu Prohibition Act, and in default to undergo S.I. for one month.

The case of the prosecution is as follows:-

It is alleged that on 22-9-1991 at 6:30 p.m., in a shop at V.E. Road, near Railway colony, the Petitioners were found selling unauthorisedly liquor bottles and that P.W.I - Head Constable and P.W.2 - Sub Inspector of Police went and searched the shop and recovered brandy bottles as well as the sale proceeds under Ex. PI mahazar, attested by local Village Administrative Officer, and after investigation, charge sheet has been filed by the Respondent / police, against the Petitioners for the offence u/s 4(1)(i) of the Tamil Nadu Prohibition Act.

On the side of prosecution, P.W.l Head Constable and P.W.2 Sub-Inspector of Police were alone examined. The mahazar witness, viz. the Village Administrative Officer, though cited as witness in the charge-sheet has not been examined on the prosecution side. After the trial, the trial court convicted and sentenced the Petitioners as referred to above. Aggrieved by the said conviction and sentence, the Petitioners have preferred an appeal before the Sessions Court, Tuticorin confirmed the judgment of the trial court.

Heard both sides.

In this revision, only one ground has been urged by Mr. Jagadish Chandra learned Counsel for the revision Petitioners. It is submitted by learned Counsel that though the brandy bottles have been seized from the shop in question, they were not sent for chemical analysis, so as to establish that the material objects contained the prohibited liquor as to warrant trial for the offence u/s 4(1)(i) of the Tamil Nadu Prohibition Act. In order to substantiate this submission, learned Counsel relied upon the Judgments reported in 1966 L.W. (Crl) 26 : 1969 L.W. (Crl.) 239 : 1979 L.W. (Crl) 34. Admittedly in this case, the bottles affixed with the brandy labels have not been sent for chemical analysis, especially when the recovery has been made from the accused in the scene place.

The dictum laid down in the above referred decisions is that the prosecution, in the case of offences under Prohibition Act, must establish through evidence that the bottles contained the 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. The mere affixing of labels on the bottles may not be a proof to hold that the Petitioners were found selling the prohibited liquor as defined in the Prohibition Act. Therefore, the conviction and sentence imposed on the Petitioners by the trial court and confirmed by the first appellate court are not correct.

Accordingly, the revision is allowed. The conviction and sentence imposed on the Petitioners are set aside and they are acquitted. The fine, if collected, shall be refunded to the revision Petitioners.