PATTALI Vs. STATE

JUDGEMENT

(1.) THIS is a revision cast against conviction and sentence. The crux of the indictment against the accused -petitioner herein is as follows: - - The accused was working as sweeper -cum -porter, Gomangalam railway station. On 21.2.1981 the accused came in a drunken mood and asked permission from P.W. 1, the Assistant Station Master, Ottakal, to talk through phone. When the permission was refused by P.W. 1, the accused caught hold of the shirt of P.W. 1 and took his chappal to beat him and ho was prevented from beating P.W. 1 by Nagarajan, Gandhi, Veerasami Gounder and Balasubramaniam, who were present there. Thereafter, the accused threatened P.W. 1 slating that he would kill him P.W. 1 then closed his room and sent intimation to DOS Madurai, S.I. Railway police Palani and Railway Protection force, Pollachi. One Thiru Arunachalam was then working in the Railway force, Patani. Upoo receipt of the report given by P.W. 1 he went to Thippampatti, appended the accused and sent him for clinical examination. After investigation, a report was filed under S. 173, Crl.P.C. to the effect that the accused appeared to have committed offences punishable under Ss. 448, 353, 355 read with Ss. 511 and 506(II), I.P.C. and S. 4(1)(i) of the Tamil Nadu Prohibition Act. The charges were framed accordingly by the trial court, which found that the accused was guilty of offences under S. 355, I.P.C. and S. 4(i)(j) of the Tamil Nadu Prohibition Act (hereinafter referred to as the Act) and sentenced him accordingly. On appeal, the learned Sessions Judge, Madurai North, at Dindigul, acquitted the accused of the offence under S. 355, I.P.C. and confirmed the conviction under S. 4(1)(j) of the Act and also sentence of six months imprisonment and the fine of Rs. 1,000 for the said offence.

(2.) IT is first pointed out by the Learned Counsel for the petitioner -accused that the courts below have dealt with the accused on the misconception that he was a Government servant and have imposed on him the minimum punishment contemplated under S. 4 of the Act. He argued that the word 'public servant' had a very restricted meaning in the Act. It is defined as follows

(3.) THE Learned Counsel appearing on behalf of the prosecution, contended that though the factum of consumption itself is not proved, the circumstance that along with the smell of alcohol, there were other symptoms such as redness of eyes, pupils being dilated, incoherent speech and unsteady gait would lead to the conclusion that the accused had consumed the prohibited liquor as held in the Public Prosecutor v. Gangadhara Shetti, 1955 M.W.N. Cr.249. He also placed reliance on the decision in Mohamed Sultans. State, 67 L.W. 646 :, 1954 M.W.N. Cri.151 wherein it was held that where the doctor examined the accused and found the following symptoms: (1) smell of liquor in the mouth;(2) pupils dilated; (3) eyes red, sod (4) pulse excited, it was right to conclude, taking all toe symptoms Into account, that the accused had consumed liquor. A perusal of these decisions would only disclose that the essential ingredients of offence under S. 4(1)(j) of the Act is the fact of consumption of liquor in the prohibited area and that, such fact, like any other fact, can be either proved by direct evidence or by circumstantial evidence. In other words, either the accused person should have been seen consuming liquor in a prohibited area and in that case ocular evidence should be produced or from the examination of the accused that there should be an irresistible conclusion that he had consumed alcohol within the prohibited area. In the present case, there is no direct evidence. The prosecution relied only on the evidence of the doctor examined as P.W. 3. P.W. 3 found when he examined the accused Pattalai on 22.2.1981 at 1 -30 p.m. that the accused was normal in every respect but he was able to notice the email of arrack. He was of the opinion that the accused consumed arrack on the basis of the report of the chemical examination, Ex. P3. In fact Ex. P3 discloses that the blood contained 109 -1 milligrams percent of w/v of Ethyl alcohol and in the urine 287.2 milligrams per cent w/v of Ethyl alcohol was detected. Therefore, the circumstantial evidence is to the effect that the accused had consumed alcohol; but the prosecution has failed to show that such consumption was in any prohibited area. In fact, the accused was apprehended in Thippampatty which is not tar from Kerala Border. The investigation should have assessed the approximate time of consumption and shown has during that period, the accused should have in all probability been within 'the prohibited area of Tamil Nadu. In this respect, there is no evidence whatsoever. As pointed out in the decision relied upon by the accused and referred to above, viz, in The Public Prosecutor v. Perumal and other, 1948 M.W.N. (Crl.) 14, there should be evidence on record that the consumption took place in a prohibited area. It is also worth noting that in this case, the (sic) officer, though in his final report has also (sic)eluded S. 4(1)(j) of the Act, has not stared of his report that the accused consumed accused consume(sic) any where in the State. He rested content (sic) mentioning that the accused was in a (sic) mood. Further, the Government has (sic) an order vis., G.O.Ms. 192, Home (sic) Department dt. 25.1.1980 remitting the (sic) portion of sentence of for all persons (sic) and sentenced under S. 4(1)(j)(sic) and it has further directed that all (sic) the accused charged under the above (sic) the Act and pending trial be (sic) Such being the policy of the Government (sic) wards the prosecution of offences (sic) section of the Act, when a case is (sic) brought before the court for the (sic) of the same offence, one would expert a (sic) plete and adequate proof of the (sic) of the offence. It is not so in this case in fact, from the report of the(sic) Officer this offence is only an (sic) was mainly prosecuted for offence (sic) Ss. 448, 353, 355 read with S. 511 and (sic) I.P.C. The fact that he was in (sic) mood was only mentioned as the (sic) making probable the commission of the (sic) offences. At any rate, in the percent (sic) since the fact of having consumed (sic) within the prohibited area has not been proved beyond reasonable doubt the conation cannot stand.