STATE OF KERALA Vs. BHAVANI

JUDGEMENT

(1.) This Criminal Appeal by the State is preferred against the acquittal of the accused charged under S.8(1)(g) of the Prohibition Act (Act XIII of 1950) by the Sub Magistrate, Nedumanagad.

(2.) On 2-9-1962 at about 10 A. M. PW 1 the Excise Guard detected the accused woman in possession of seven edangalies of liquid Koda in MO 1 tin and manufacturing liquor out of it in her compound which is within the prohibited area. PW 1 prepared a mahazar Ext. P 1, seized the offending articles and produced them before PW 2 the Range Officer on whose request the court sent the liquid for chemical analysis and obtained Ext. P 3 Analyst's report. When the charge which sets out in detail the fact that the accused was found preparing about 4 gallons of a fermented liquid which contained Icn ((THELAW))]« jaggery and water for distilling arrack, was read out she pleaded guilty and failed to show cause against her conviction. The learned Magistrate did not think it proper to accept the plea and proceeded to try the case.

(3.) PW 1 the Excise Guard gave evidence as to how he. found the accused in the actual preparation of the liquid and arrested the accused and produced her and the liquid before the officer. The witness tested the liquid and found the taste of arrack and smelt it and found strong smell of liquor and was satisfied that it was Koda a fermented liquid made out of the bark of Karinja, Jaggery and water for distilling arrack. He has put in twenty years of service in the department and was working in the Prohibition area for the past ten years. He has detected several prohibition cases involving seizure of Koda or wash. He can legitimately be considered as an expert and his evidence regarding the wash may be accepted as expert testimony. However Pw.2 the Range Officer stated when cross examined by the court that Koda or wash for preparing arrack should contain a minimum of 6% ethyl alcohol. The acquittal is based solely on this admission made by the witness as the report of the Analyst showed only traces of ethyl alcohol. PW 2 is not questioned whether his opinion was based on any authority. As observed by Ramaswamy, J., in In re Rajabather AIR 1959 Mad. 450 wash will be of different descriptions limited only by human ingenuity and as such PW 2's haphazard opinion may or may not be correct with regard to some kind of wash, but to insist on the presence of 6% ethyl alcohol in every type of wash and irrespective of the stage of fermentation it had reached would lead to absurd results. If PW 2 was so confident about the correctness of his opinion he should not and could not have charged the case on 18-9-1962 after the receipt of the Analyst's report.