Suresh Kumar Gupta vs The State of Assam

B.L. Hansaria, J.—The Petitioner has been found guilty u/s 4 of the Assam Liquor Prohibition Act 1952 mainly on the evidence of P.W. 1, a doctor attached to Tezpur Civil Hospital, who on examination of the accused-Petitioner on 31.8.77 had found: (1) both pupils were dilated, (2) smell of liquor from the mouth, and (3) inability to take care of himself. The other P.Ws. have mainly deposed about some disturbance being caused by the accused at the police station, where the accused had appeared along with a woman towards the midnight. These witnesses are P.Ws. 2, 3 and 4. The conviction is thus apparently founded on the findings of P.W. 1.

Question is whether this is enough under the eye of law to bring home the charge of consumption of liquor. Reliance has been placed by the prosecution on Section 3A of the Act which reads.

Whenever any person is found in a state of drunken-ness within a prohibited area, the Court shall presume that the person has consumed liquor within the prohibited area.

As to this Section, Sri Medhi first submits that it no longer holds the field in view of Assam Liquor Prohibition (Amendment) Act 1976 by which a new section called 3A was inserted after Section 3. The new section as inserted by the above Act deals with prohibition of publishing or displaying advertisement of liquor in any newspaper etc Though the new section has also been styled in the amendment Act as 3A, the amendment has not stated that this section will stand substituted for original Section 3A. This apart, as the subject matter of the two sections is entirely different, I am of the view that the new section through inadvertence has been called 3A. I would not therefore read even implied repeal of original Section 3A by the amendment Act of 1976.

The main submission, of the learned Counsel is that the symptoms found by P.W. 1 are a sufficient to conclusively hold that the Petitioner was not in state of drunkenness. Reference has to be made in this connection to Maniram Gunju v. State of Assam AIR 1970 Gau 46 where the court was satisfied about the applicability of the aforesaid provision on the findings of (1) smell of alcohol; (2) conjunctiva congested; (3) unsteady gal(sic) and (4) speech incoherent. Sri Medhi has however drawn my attention to a later decision of this Court, also by a Division Bench, in Crl. Revisions No. 90 and 104/1974, judgment in which was delivered on 2.8.79, in which it was not held that the concerned Petitioners were in state of drunkenness because of (1) smell of alcohol : (2) slurred speech (3) girt unstable; and (4) pupils dilated. This view was taken after referring to the definition of drunkenness as finding place in medical treatise. The present case on all fours with the aforesaid cases. My attention is also invited by Sri Medhi to a decision of Supreme Court in Bachubhai Hassanalli Karyani Vs. State of Maharashtra, in which also the doctor had found (1) smell of alcohol in breath; (2) gait unsteady; (3) speech incoherent and (4) pupils dilated. The Supreme Court held that on the basis of the doctor''s evidence it could not be definitely held that the Appellant was drunk. In this connection necessity of urine test or blood test was emphasized by the Supreme Court. It is apparent that a person cannot be said to be in a state drunkenness, unless it can definitely be said that he was drunk at the relevant time. This decision has been followed, as it has to be In Kishanbhai Jinubhai Gavit Vs. The State of Maharashtra, a decision of Bombay High Court.

When the attention of the learned Sessions Judge was invited to the aforesaid Supreme Court decision, the learned Judge observed that the case at hand was different inasmuch as here the accused accompanied by a woman entered a police station almost at midnight and caused disturbance there uttering filthy words all through, It would be difficult on the basis of these facts to hold that the Petitioner must have done as above only because he was drunk in this connection it would be apposite to mention that the Petitioner was in the mental hospital for some time before the occurrence. P.W. 4 was therefore asked whether he new that the Petitioner had noted as above being drunk or due to insanity.

Because of all the above, it has to be hold that the prosecution has failed to discharge its burden of proving that the Petitioner had consumed liquor. The learned Public Prosecutor States that according to him also the evidence is not sufficient but he submits that the Court may draw a presumption in this regard. I am afraid that law does not permit the Court to presume that a person has committed an offence unless the materials on record prove that conclusively. Section 114 Evidence Act, which is mentioned in this context, does not permit a court to raise presumption in favor of the prosecution, where it has failed to prove the gully to the hill. Ali that can be presumed u/s 3A of the Act is, if the state of drunkenness is established by the prosecution, that the person concerned had consumed liquor within the prohibited area, if he was found within the prohibited area in that state. The dispute in the present case is not about the territorial aspect of the matter, but with the basic fact relating to the Petitioner''s being in a state of drunkenness. If the evidence is not sufficient in this regard, benefit of the same has to be given to the accused, and not to the prosecution.

This being the position, the conviction cannot be sustained and is set aside. This petition is allowed by acquitting the Petitioner.