T M MOHAMMED Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner was convicted by the Second Class Magistrate of Tellicherry, for an offence under S.8(1)(j) of the Kerala Prohibition Act. On 27-1-1963 at about 11 P. M. Pw. 1, a Police Constable, found the petitioner drunk and in a state of intoxication. The petitioner was arrested and pw. 3, the doctor, examined him and granted the certificate. According to the medical witness the petitioner had consumed alcohol, but was not under its influence. The Court, however, convicted the accused under S.8(1)(j) for having consumed liquor. In appeal it was contended that there is no evidence that the accused had consumed any liquor and even if liquor had been consumed that it was done from within the prohibition area. Learned District Magistrate has observed that there is no burden on the prosecution to show that the accused had consumed liquor from a prohibition area, & that the onus is on the accused to show that he had consumed liquor from a non prohibition area. This view of the learned District Magistrate is clearly erroneous. The burden is always on the prosecution to prove that the consumption of liquor by the accused was from a prohibition area which alone would make it an offence. There is no satisfactory evidence in this case that the consumption of liquor was from a prohibition area. The learned District Magistrate has really missed the point and the conviction cannot be supported.