GULLEGAR SETTY Vs. STATE OF MYSORE

JUDGEMENT

(1.) The petitioner has been convicted by the Special First Magistrate, Shimoga, for an offence under Section 4(1) (j), Mysore Prohibition Act, and sentenced to pay a fine of Rs. 100/-. On appeal, the Sessions Judge, Shimoga, confirmed the conviction and sentence. He has now come up in revision.

(2.) The case for the prosecution was that the petitioner was found on the Ayanoor Shimoga road to have consumed intoxicating liquor on the night of 23-4-1951 when he was travelling as a passenger in a car with his wife, and when the car was stopped by the Police Inspector of Shimoga Taluk coming to Shimoga in the opposite direction. It is not disputed that the whole of Shimoga District is a prohibition or "dry" area and that the Prohibition Act fully applied in that area; nor is it now contended that the accused had not consumed any liquor. But Mr. Gulur Sreenivasa Rao, learned Counsel for the petitioner, has raised a Bather interesting question and that is that the case of his client does not fall under Section 4(1) (j), Prohibition Act, which refers to consuming liquor or any intoxicating drug within a "dry" area. He urges that in a case like the present, it is not enough for the prosecution merely to establish that the accused had taken some liquor somewhere and was found smelling of liquor within the prohibited or "dry" area, but it should also be shown positively that he had consumed that liquor within that area. He presents that it has not been proved in this case that the accused had actually consumed the liquor within such area. In this connection he has referred to Section 5, prohibition Act. According to that section, a person is liable to punishment if he is found in a state of intoxication in any public place, or if he is found in such a state even in a private place if he does not possess a permit to drink. He urges that reading Section 5 along with Section 4(1) (j) it is only if a person is found in an intoxicated state in a dry area that he can be punished, while under Section 4(1) (j), he can only be punished if it is proved that he had actually consumed liquor within that area and that in the latter case the burden of proving where the liquor was consumed is entirely on the prosecution.

(3.) I am unable to accept that contention. Section 5, Prohibition Act, applies no doubt to cases where, irrespective of the place of drinking, the accused is found intoxicated either in a public place or in a private place within a "dry" area, and Section 4(1) (j) to cases where the accused has consumed liquor within the "dry" area. In the latter case proof of the intoxicated condition is not necessary. But where in a case like the present the prosecution has proved that the accused was found to have consumed liquor, without being intoxicated, in a "dry" area, at a place and under circumstances which prohabilize that he did so in a dry area it is really for the accused to plead and prove that he took the drink in a non-prohibition or "wet" area. The exact place where the accused actually drank the liquor is a matter specially within his knowledge. In the ordinary course of events, he may be expected to have taken it somewhere locally in the vicinity where he is found. It is open to him to show that he took the liquor in a "wet" area and had travelled or moved into a "dry" area while the effects of drinking were still persisting. In this connection Mr. Sreenivasa Rao has strongly relied on a case reported in -' State v. Pranjivan Gendalal', AIR 1952 Sau 35. In that case the accused was found in Bhavanagar in a drunken condition. He was charged with an offence under Section 66(b), Bombay Prohibition Act, of having consumed an intoxicant without a permit. There was no evidence on record as to where the accused had actually taken the intoxicant. The learned Sessions Judge found that it had not been proved that the respondent had taken an intoxicant within the limits of the jurisdiction of the Magistrate who had tried the accused and convicted him; and he, therefore, held that the accused could not be convicted at Bhavanagar of the offence of having taken an. intoxicant within that area. Upholding that decision, Chhatpar J. observed that there could be no presumption that in the natural course of events a person should be considered to have taken liquor at the place where he was found drunk. "The effect of drink may last for several hours and during that interval a man may proceed from place to place"; the local limits of the jurisdiction of the Magistrate at Bhavanagar were confined to the limits of that Taluka and another adjoining area and it was quite possible that a person may reach Bhavanagar from outside such limits within a very short period of time especially in view of quick travel by plane or railway.