MD ABDUL MATLIB Vs. STATE OF ASSAM

JUDGEMENT

(1.) This revision is directed against the judgement and order dated 6-1-83 passed by the learned Sessions Judge, Nowgong.

(2.) Briefly, the facts are that the petitioner was prosecuted for having committed offence under Sec. 4 of the Assam Liquor Prohibition Act, 1952, hereafter the 'Act', on the allegations that on 23-11-78 at about 7 a.m., when K.R. Laskar, Inspector of Excise, hereafter referred as the 'Inspector' conducted search of the petitioner's residential house and its compound in village Sutahayabargaon, in his and the presence of the witnesses, a drum and two tins containing about 50 kgs. of 'fermented wash' were found in the compound of the house of the petitioner. A bottle containing about 750 ml. illicit distilled liquor and distilling apparatus from the backside of the petitioner's house were also found which were seized and later sample of liquor seized was sent for chemical examination. The chemical Examiner (Excise) reported that the sample was 'alcoholic liquor'. The prosecution examined three witnesses including the 'Inspector'. The defence plea was of total denial. The learned trial Court found, the petitioner had committed the offence punishable under Sec. 4 of the Act, and accordingly sentenced him to rigorous imprisonment for six months and a fine of Rs. 500/-. In appeal, the learned Sessions Judge upheld the findings of the learned trial Court and dismissed the appeal.

(3.) Sri S.N. Bhuyan, learned Counsel for the petitioner has submitted that it was not proved that any liquor had been found from the residence of the petitioner, that it was not proved that the 'material' seized was liquor for the sample was sent for examination after considerable delay, with the result that due to fermentation increase in alchoholic strength, could take place, that the witnesses for the prosecution were not reliable and it was not proved that the search had been conducted in the manner required, that the fact that the aforesaid articles were stated to have been recovered from the compound of the petitioner did not mean that the same had been in conscious possession of the petitioner, i.e. the probability that the same had been kept there by somebody else could not be excluded and finally that the petitioner should be given benefit of probation under Sec. 360 of the Code of Criminal Procedure, hereafter the Code.