Smt. Chakku Bai vs State by the Inspector of Police

T.V. Masilamani, J.—This appeal has been preferred against the judgment of conviction and sentence rendered by the Assistant Sessions

Judge, Vellore dated 17.10.1996.

The respondent-police filed a complaint against the appellant/accused u/s 4(1-A)(ii) of the Tamil Nadu Prohibition Act stating that on

19.11.1994 at about 6.30 P.M., the accused was selling illicit arrack adulterated with the contraband atropine which is injurious to health at

Pallaikuppam village. The complainant says that the illicit arrack was sold by the accused and since he had consumed the same, he had giddiness,

eye-irritation and fainting. Thereupon, he preferred the complaint before the respondent which gave rise to the prosecution. The Assistant Sessions

Judge, having analysed the evidence adduced by the prosecution and after hearing the arguments of both sides, held that the appellant/accused was

guilty of the offence u/s 4(1-A)(ii) of the Tamil Nadu Prohibition Act and sentenced her to undergo R.I. for 10 years and to pay a fine of

Rs.7,000/-, in default to undergo one year simple imprisonment. Hence, the appeal.

In the above circumstances, the point for consideration is whether the judgment of conviction and sentence rendered by the trial Court is liable

to be set aside.

The Point:- The learned counsel for the appellant/accused has argued at the outset that the complainant Sekar, who has been examined as

P.W.1 in this case, turned hostile and therefore, his evidence has given a go bye to the complaint Ex.P-7 marked through the Investigating Officer

P.W.7. P.W.1 has admitted that Ex.P-1 his signature alone was subscribed by him in the complaint Ex.P-7. Therefore, the learned counsel for the

appellant/accused has urged that mere recovery of the contraband from the accused, even if it has been proved beyond reasonable doubt, cannot

be the sole ground for conviction. He has relied on the decision in Thaloavoi v. State 1995 M.L.J 410 in support of such contention. It is useful to

refer to the ratio laid down therein to appreciate the facts of this case.

Section requires that the ingredient of the sample was of the nature which was likely to cause death or grievous hurt and as there is no evidence

that the Atropine and chloral hydrate were in the nature of causing death or grievous hurt, no offence is made out u/s 4(1)(A) of the Prohibition

Act. .. .. .. Unless the poisonous substance seized was in the nature of causing death or grievous hurt, offence u/s 4(1)(A) is not made out.

In view of the above said ratio, if the evidence in this case is analysed, one would come to the irresistible conclusion that there is no evidence to

show that the contraband seized from the accused, if consumed, would cause death or grievous hurt. The learned counsel for the appellant/accused

has pointed out that the evidence of P.W.5 Dr. Premkumari to the effect that when she examined P.W.1, his speech was coherent, he identified

things properly and he walked without any trembling even though he was found to have consumed alcohol, he was not under its influence. Similarly,

the learned counsel for the appellant/accused has referred to the evidence of P.W.6, Hari, Forensic Science Expert, Villupuram, to show that the

quantum of Atropine 5.2 milligram could not have caused grievous hurt or death to anybody who consumed the contraband with such quantity of

Atropine and it is seen from the evidence of P.W.6 that he has not stated anywhere that the said quantum of Atropine would have caused grievous

hurt or death, if consumed with arrack. Hence, the evidence of P.Ws.5 and 6 does not lend support to the case of the prosecution.

It necessarily follows that apart from the evidence of the Investigating Officer P.W.7, there is no independent evidence either to show that

P.W.1 had consumed illicit arrack with Atropine nor had he suffered any grievous hurt. But, on the other hand, his evidence, though hostile, would

reveal that at or about the time of occurrence, he had consumed the arrack sold by one Raja and therefore, it goes without saying that the accused

is not connected with the occurrence by any tangible evidence adduced on the side of the prosecution.

The learned Government Advocate (Criminal Side) has not disputed the proposition of law laid down in the decision cited supra. Having regard

to the above facts and circumstances and in view of the evidence adduced by the prosecution in this case, I am inclined to follow the dictum laid

down by the decision in 1995 M.L.J.410 to come to the conclusion that the prosecution has miserably failed to prove the case beyond reasonable

doubt. In this view, this Court finds that the judgment of conviction and sentence rendered by the trial Court, is liable to be set aside.

In the result, the Criminal Appeal is allowed. The judgment of conviction and sentence rendered by the trial Court is set aside and the

appellant/accused is found not guilty of the charge and acquitted thereof and the bail bond executed by the appellant/accused stands cancelled. The

fine, if any, paid by her is ordered to be refunded.