T GOURIDAS Vs. GOVERNMENT OF KERALA

JUDGEMENT

(1.) THE petitioner was tried by the Sub Magistrate of kozhikode for an offence under S. 8 (1)0) of the Kerala Prohibition Act (shortly stated the Act) for having consumed liquor within the prohibition area and was found guilty and sentenced to pay a fine of Rs. 500/ -. In appeal to the Sub divisional Magistrate of Malappuram the conviction and sentence were confirmed. Aggrieved with the order this revision has been filed.

(2.) TWO witnesses were examined for the prosecution. Pw. 1 is the Sub Inspector of Police who deposed that on 1-8-63 at about 5-45 p. m. , while he was engaged in prohibition checking he found the petitioner along with another person seated in a compound called Rarichanthodi near the Payanakal fair price depot. Petitioner's companion Swami had a bottle of arrack with him and a glass and the petitioner was smelling liquor. So he was taken to the doctor, who examined him and certified that he had consumed alcohol. Ex-Pi is the certificate. Pw. 2 is the witness who was present at the place and saw the sub Inspector arresting the accused. He would say that he actually saw the accused consuming liquor. Learned Sub Magistrate accepted the evidence of Pws. 1 and 2 and on the strength of Ex-P1 certificate found the accused guilty of the offence charged. In appeal learned Sub Divisional Magistrate also believed the evidence of Pws. 1 and 2 and confirmed the conviction and sentence.

(3.) EVEN otherwise, the fact that the accused when examined by the doctor was smelling alcohol would not be sufficient to bring home the guilt to the accused. It is the duty of the prosecution in a charge of an offence under S. 8 (1) 0) to prove that prohibited alcohol had been consumed and that duty does not cease by merely proving that the accused was smelling alcohol. Reference may be made to the decision of the Supreme Court in Pesikaka v. State of Bombay (1955 S. C. J. 73 ). Smell of alcohol would be present even if the person had taken some ayurvedic medicines like Aristams and Asavams. So in any view of the case the evidence is not sufficient to warrant an inference that prohibited alcohol had been consumed. The revision petition is, therefore, allowed and the conviction and sentence are set aside. Fine, if paid, would be refunded. Allowed.