PALANI GOUNDAN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) I agree and I have nothing to add. Ramaswami Goundar, J.

(2.) THE accused has preferred this revision to this Court against his conviction under Section 4-A of the Madras ' Prohibition Act, 1'937, both by the Sub-Magistrate, Trichengode and the Sub-Divisional Magistrate, Sankari, in appeal, and sentence of a fine of Rs. 100. That section lays down that whoever is found in a state of intoxication in any public place. . . . . shall be punished with imprisonment which may extend to six months* or with fine which may extend to Rs. 1000 or with both. While the legislature has made intoxication in a public place a punishable offence, it is somewhat surprising that it has not taken care to define what intoxication means. In the absence of any statutory definition, we will have to adopt its ordinary etymological meaning, namely, a condition produced by excessive use of alcoholic stimulants, as defined in Dorland's American Medical Dictionary. It will be seen that Section 4 (1) (j) also provides that whoever consumes liquor or any intoxicating drug shall be punished with imprisonment and fine and so, the offence under Section 4-A appears to be an aggrieved form of the offence under Section 4 (1) (j ). In this case, both the Courts below came to the conclusion that the accused was guilty of the offence with which he was charged.

(3.) THE only material evidence on which the lower Courts came to that conclusion was that of the rural medical practitioner P. W. 2, who examined the accused on his production by the Head Constable at about 2-15 a. m. on 16-3-1955; and on such examination, the doctor observed the following symptoms : (1) smelling of arrack in the breath; (2) redness of the eyes and dilation of pupil; (3) tongue clean and dry; (4) speech incoherent; and (5) staggering gait. On those symptoms, the doctor formed the opinion that the accused had consumed liquor and was under its influence. The learned counsel for the accused contended that those symptoms did not necessarily lead to the only conclusion, namely, that the accused was under intoxication; and he further contended that about that time, the accused was taking some medicinal preparations containing slight alcohol under the prescription of the Civil Assistant Surgeon, Government Hospital, Bhavani, examined as D. W. 1, and that the symptoms observed might be due to the accused taking those medicine. The doctor D. W. 1, gave evidence that in October 1954, he examined the accused and found that he Was suffering from Asthma and chronic bronchitis. He prescribed the mixture and some tonic as mentioned, in his prescriptions, Exs. D-1 and D-2. The medicine prescribed by him and also the tonic contained slight alcohol, and tonic containing 12 per cent, of alcohol. The doctor gave evidence that if the mixture and tonic were taken together, the smell of alcohol would continue for an hour. Thus, the smelling of arrack in the breath observed by P. W. 2 was sought to be explained. But then, as the accused was examined by P-W. 2 at 2-15 a. m. the accused must have taken the medicine and the tonic at about l a. m. when he was arrested; and 1 am not sure whether at that hour of the night the accused took his medicine. As regards the redness of the eyes, D. W. 1 stated that even at the time of the trial, the eyes of the accused were red; and, of course, the redness in the eyes might be due to various other causes. The doctor also deposed that asthmatic mixture makes the tongue dry. Even assuming that on the evidence of D. W. 1, the symptoms such as smelling of arrack in the breath, redness of eyes, tongue clean and dry, might be explained as being due to the accused taking the asthmatic mixture and tonic, the other two important symptoms, namely, incoherent speech and staggering gait, will have to be explained, in regard to that, the doctor, D. W, 1, stated that his asthmatic mixture consisted of bromide, iodide, ammonium carbonate, spirit etc. , and that he had also prescribed phenobarbitone and morphia. His evidence, further, was that morphia produced giddiness but the degree he could not say. The evidence of the District medical Officer, Salem, who was examined as Court witness, was that phenobaroitone is administered to persons suffering from bronchitis or asthma and that it causes giddiness. The two symptoms referred to above, namely, incoherent speech and staggering gait, were accordingly attributed to the giddiness which might have been caused by morphia and phenobarbitone. But the two doctors, D. Ws. 1 and 2 have not been asked whether the small percentage of those drugs present in the prescriptions Exs. D-l and D-2, would have been sufficient to cause giddiness, and, in consequence, those/two symptoms. Nor has it been elicited from those two doctors that the taking by the accused of the medicine and the tonic prescribed under Exs. D-l and D-2 would have been sufficient to produce the symptoms observed by P. W. 2. On the other hand the evidence of D. W. 1 was that the therapeutic does not cause intoxication, though he was cautious enough to add that it would depend upon the patient. There is therefore no explanation offered by the accused how those symptoms could have been possible' if what he consumed was confined only to the medicine and the tonic prescribed by his doctor. On the symptoms observed by P. W. 2, I am prepared to agree with the: opinion expressed by that doctor, namely, that the accused, when he was examined, was under the influence of liquor, that is to say, was in a state of intoxication.