SHRI ROHIT SAIKIA Vs. THE STATE OF ASSAM

JUDGEMENT

(1.) This is a revision against the conviction of the accused under Sec. 4 of the Assam Liquor Prohibition Act, for short 'the Act' and sentencing him to undergo imprisonment for 3 months and to pay a fine of Rs. 100/ -.

(2.) The Factual Matrix : P.W. 1, Shaaker Kishor Pandey, a police cop, alleged that on 26.11.76 around 11.10 p.m. be found the accused and another person in a state of drunkenness in front of the State Transport Corporation Office Jagiroad. They were nabbed, taken to the police station and got the accused examined by P.W. 2, Dr. D.C. Goswami who certified that the accused bad taken liquor. Thereafter, a formal ejahar was lodged and the police submitted charge -sheet against the accused under Sec. 4 of "the Act'. The allegations of the prosecution are that the accused was found "in a state of drunkenness", which is an offence as defined under Sec. 3(3) of 'the Act". Sec. 3(3) prohibits consumption of liquor except on a permit granted under the provisions of the Act and the Rules framed thereunder. The offence of consumption of liquor is punishable under Sec. 4 of 'the Act' which provides that the punishment must be for a period not less than 3 months and also with fine. It is necessary to mention at this stage that consumption of liquor is prohibited only in some prohibited areas of the State. The prosecution case was that "Jagiroad" was "a dry area", that is, "prohibited area" and, the accused consumed liquor within "dry area" and therefore liable to be punished under Sec. 4 of "the Act". However, admittedly there is no ''probatio viva", i.e., eyewitness, who had seen the accused taking liquor within the prohibited area. But the prosecution case is that the accused was found "In a state of drunkenness' from which a reasonable inferences may be drawn that he consumed liquor within the dry trail. The prosecution examined 3 (three) witnesses but the sole witness to prove the alleged state of drunkenness was P.W. 2. Dr. D.C. Goswami who had clinically examined the accused. He said inter alia that he bad reached the conclusion that the accused consumed liquor based on certain data that the accused smelt alcohol, his gait was unsteady and staggering, eyes were dilated and speech incoherent. If any one is suspected by the police and taken to doctor via, police station, one is bound to be nervous, his gait might be unsteady and speech incoherent. Similarly, a person may smell alcohol without being under the influence of drunkenness. Admittedly, no urine or blood test was done. There fore, the opinion of the expert is 'nothing but "my guess and your guess". The vital clinical examinations required for sending a person to jail must be done to satisfy the mind of a prudent and reasonable person. Urine test is one of the well -known methods to show that the accused must have consumed prohibited liquor in "a dry area". Blood and urine tests are semi sure test to satisfy the conscience of the court that the accused is guilty of the offence. As such, the apposite tests required were left undone but on physical examinations of the accused the witness opined that the accused was under the influence of liquor, however there is no opinion of the witness that the accused consumed "prohibited liquor". It is an admitted fact that there are two shades of liquor which are defined in Sec. 2(3) of "the Act'. First, liquor, containing 5% of alcohol which is exempt from the operation of "the Act" and secondly, liquor containing more than 5% of alcohol which is prohibited. Under these circumstances when there are two classes of liquor, 'prohibited' and 'non -prohibited' it was the bounden duty of the prosecution to establish beyond reasonable doubt that the accused consumed 'prohibited liquor' i.e. liquor containing more that 5% alcohol. There it no evidence adduced by the prosecution that the accused consumed "prohibited liquor". Even the doctor did not say that the liquor consumed by the accused was of the prohibited category.

(3.) The second facet of the case is whether the accused consumed liquor knowing it to be an office, No parson can be convicted of an offence under "the Act" unless the elements of the offence are established by the prosecution. The "actus reus' includes all the elements in the definition of the crime. The "actus reus" is made up generally but not invariably, of conduct sometime its consequences and also of the circumstances in which the conduct takes place, which are relevant. These have not been established in this case. The majority of the learned lawyers present in the court could cot say whether "Jagiroad" was a dry area or a "wet area" in the year 1976. The accused comes from the lower of the walk of life. There is no evidence that the notification bringing in the place, within the dry area was communicated to the people of that area to make them understand that it was an offence to consume liquor. The "mens rea" is an essential element of offence and it is the duty of the prosecution to establish that the area was a dry area and it was made known to the inhabitants of the area that it was an offence to consume liquor in the area. In the absence of communication of the law it cannot be presumed that the accused committed the crime knowing it to be an offence. A stranger not aware of the fact that it is an offence to possess and/or consume liquor in a prohibited area may not be punished under Sec. 4 of "the Act' unless it is established that he carried or consumed liquor in a dry area knowing it be an offence. A person must have some guilty mind otherwise he cannot be convicted. However, that expression 'guilty mind' sometime may be misleading, A person can be convicted of an offence when be does the prohibited act knowing it to be an offence otherwise not. In the instant case there is no evidence to show that due notice was issued and communicated to all including the illiterate person and working classes, to which the Petitioner belongs, that it was an offence to consume liquor in the area, I would like to observe in passing that the vehicles of communication of the law is very poor. How many enlightened persons are aware of the law locked up in the official gazettes? If those within the law are not aware how could the illiterate or semi -literate poor should be punished. Something positive is imperative to improve the means and methods of the communication of the law, to make them aware or to educate them. However, these are my pawing observations.