OLI Vs. STATE

JUDGEMENT

(1.) THE petitioner, who was accused No. 4 before the trial court, is canvassing the judgment passed by the learned Chief Judicial Magistrate of Madurai in C. A. No, 88 of 1974, confirming the conviction and sentence passed in C. C. No. 1125 of 1974 by the learned Judicial II Class Magistrate, Uthampala-yam, viz. , convicting the petitioner under Section 61 (f) of the Tamil Nadu Excise Act and sentencing him to suffer simple imprisonment for three months. Before the trial court, there were four accused including this petitioner, who were tried for an offence under the above charge, on the allegation that on 20-4-1974, at about 6-45 a. m. , at Cumbur-Mettu Road on the southern bank of Kalivu Odai, they were each found to be in possession of 25 litres of fermented wash fit for distillation of illicit arrack, without a valid licence or permit. The prosecution examined two witnesses on its side, of whom P. W. 1 is a Head Constable and P. W. 2 is the Sub-Inspector, Excise Wing. As per their evidence, while they were on excise raid, they found the petitioner and the other accused in possession of four mud pots marked as M. O. 1 series, each containing about 25 litres of fermented wash fit for distillation of I. D. arrack and the wash was found to consist of Velampatti palm-gur and plantain fruit skins. Hence, all of them were apprehended. After taking sample of wash in four separate bottles (M. O. 2 series) the remaining wash in M. O. 1 series was destroyed. Ex. P-1 is the attakshi for the recovery of the contraband. Then, at Cumbur Police Station, a special report Ex. P-2 was given by the Excise Wing. After investigation, the petitioner and the other accused were charge-sheeted. The prosecution besides examining two witnesses, has also marked Exs. P1 and P-2. The accused examined D. Ws. 1 to 3 on their side, to speak that accused 1 and 2 were taken from their houses and accused 4 from his mutton stall. The trial court found each one of them guilty of the offence with which they stood charged and convicted and sentenced them as mentioned above, and the learned Chief Judicial Magistrate has confirmed the same, observing that "the components that are normally required for distillation of arrack were in the fermented wash" and that "therefore there is no need for having it chemically analysed.

(2.) MR. Sekkizhar, appearing on behalf of the petitioner (accused 4) who alone has preferred this revision petition, raised the only plea that in oases of this sort, the evidence based on chemical analysis is essential in order to establish that the article alleged to have been recovered from the petitioner was really wash fit for distillation and the court should not be content with anything less than a chemical report. To substantiate his contention, he placed reliance on the judgment of the Supreme Court in State of Andhra Pradesh v. Madiga Boosenna , wherein it has been held that better proof by technical person who has considered the matter from a scientific point of view is not only desirable, but even necessary.

(3.) IT is true that in cases of this nature, the prosecution has got a primary duty to establish by letting insufficient and acceptable evidence, viz. , of an expert within the meaning of Section 45 of the Evidence Act, that the article seized is and contraband prohibited by the enactment. The next question is, who is an expert. An expert is one who has acquired special knowledge, skill or experience in any science, art, trade or profession. Such knowledge may have been acquired by practice, observation, research or careful study. But, it is the duty of the Judge to decide whether the skill of any person in the matter on which evidence of the Expert's opinion is offered, is sufficient to entitle him to be considered an expert. In other words, it is the duty of the Judge to decide the question of competency of the witness. An expert, in order to be competent as a witness, need not have acquired his knowledge professionally; it is sufficient, so far as the admissibility of the evidence goes, if he has made a special study of the subject or acquired special experience therein.