STATE OF KERALA Vs. SREEDHARAN

JUDGEMENT

(1.) THIS is an appeal filed by the State against the judgment of the Sub Magistrate, Tellichery acquitting the accused who was tried for an offence under S. 8 (1) (a) of the Kerala Prohibition Act (shortly stated the act ). On 23-1-64 at about 1. 30 p. m. Pws. 1 and 2, two police constables attached to the Tellichery police station who were on patrol duty were passing along the tellichery-Coorg Trunk road. They found the accused coming in the opposite direction. When the accused saw the police he took to his heels, but they gave chase and apprehended him and seized from him three bottles of arrack M. O. 1 series. M. O. 2 is a rope with which the accused had fastened the bottles around his waist. Pws. 3 and 4, two jutka drivers, in front of whose jutkashed the accused was arrested and searched, witnessed the seizure of the bottles and they have attested the mahazar Ext. P-2 prepared at the place. Learned magistrate disbelieved the prosecution witnesses and acquitted the accused. Whatever might be said about the evidence of Pws. 3 and 4, there was absolutely nothing in the evidence of Pws. 1 and 2 to throw any the slightest doubt on the truth of their testimony. Learned Magistrate has referred to some trifling discrepancies whether the accused was walking along the middle of the road or the side of the road or where exactly the accused Was caught by each of the police constables when they stopped him. Such verbal contradictions do not materially affect the case at all and will not afford a sufficient basis for doubting their testimony. They had no motive whatsoever to get up a false case against the accused. Learned counsel for the accused fairly conceded that he is unable to subscribe to the views of the learned Magistrate and admitted that on their evidence the fact of seizure cannot be doubted.

(2.) LEARNED counsel, however, argued that there is no evidence in this case that what the bottle contained was 'liquor'. S. 8 (1) (a)says: "whoever, imports, exports, transports or possesses liquor or any intoxicating drug. " 'liquor' is defined in S. 7 (8) as including toddy, spirits of wine, methylated spirits, spirits, wine, beer and all liquid consisting of or containing alcohol. So proof that what the bottles contained was liquor is an essential ingredient in proof of the offence. It is admitted that the sample was not sent to the Chemical Analyst and, therefore, there is no certificate from him. Pw. 1 merely stated that when they caught the accused and searched his person he found three bottles of arrack tucked up in his waist. Likewise, Pw. 2 the other constable also stated that three bottles of arrack were recovered, but he further deposed that they removed the cork and by smelling both they and the witnesses Pws. 3 and 4 were satisfied that it was arrack. Pws. 3 and 4 have corroborated the evidence of Pw. 2 regarding the smelling. LEARNED counsel would argue that mere smelling alone is not sufficient to prove that the liquid in the bottle was arrack containing alcohol.

(3.) ANOTHER decision to which our attention was drawn is the case In re Madiga Boosenna (AIR. 1964 A. P. 429), where also the smell of liquor was considered not sufficient to prove the offence. There it was stated: "when scientific methods are available to prove the fact of alcoholic content of an article, the prohibition officers should not be allowed to confine proof of such an article by their mere oral statements, because the primary duty of the prosecution is to exclude every possibility of a doubt or suspicion before they ask for the conviction of a person charged under the Act, The smell of liquor is not sufficient to raise a presumption against a person charged for an offence under the Act. The prosecution when they seize the arrack should get it examined by the Chemical Examiner. They cannot be allowed to adopt an easier course of examining its own officers to prove the contents of the tins only by smell. If this is to be accepted as a general rule, it would be giving a very large latitude to the prohibition officers to prove alcoholic content of any prohibited article or drug under the act by mere smell".