State of Andhra Pradesh Vs. Madiga
Boosena & Ors [1967] INSC 135 (2 May 1967)
02/05/1967 VAIDYIALINGAM, C.A.
VAIDYIALINGAM, C.A.
HIDAYATULLAH, M.
CITATION: 1967 AIR 1550 1967 SCR (3) 871
CITATOR INFO:
D 1974 SC 639 (6,7,8,10,12,13)
ACT:
Andhra Pradesh (Andhra Area) Prohibition Act,
1937 (Act 10 of 1937) S. 4(1)(a)-Seized commodity not chemically
examined-Witnesses' smell, if conclusive proof
HEADNOTE:
The respondents were prosecuted under S.
4(1)(a) of the Andhra Pradesh (Andhra Area) Prohibition Act, on the allegation
that they were found transporting arrack. The respondents denied the offence
and pleaded that a mere statement by the witnesses that there was a strong
smell of arrack, emanating from the tins, when they were pierced was not sufficient
to establish that the tins contained arrack and that the samples of the
commodity should have been sent for opinion of the Chemical Examiner. The trial
and the appellate courts rejected the respondents' pleas and convicted them but
the High Court acquitted them. In appeal, to this Court.
HELD : The prosecution has not established
that the respondents were guilty under s. 4(1)(a) of the Act.
Merely trusting to the smelling sense of the
Prohibition Officers, and basing a conviction, on an opinion expressed by those
officers, could not justify the conviction of the respondents. Better proof, by
a technical person, who bad considered the matter from a scientific point of
view, was not only desirable, but even necessary, to establish -that the
article seized was one coming within the definition of 'liquor'. [874-E]
Baidyanath Mishra v. The State of Orissa, Crl. Ap. No. 270/1964 on 17-4-1967;
distinguished.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 6 of 1965.
Appeal by special leave from the Judgment and
order dated January 17, 1964 of the Andhra Pradesh High Court in Criminal
Revision Case No. 215 of 1963.
P. Ram Reddy and K. Javaram, for the
appellant.
The respondent did not appear.
The Judgment of the Court was delivered by
Vaidialingam, J. In this appeal, by special leave, on behalf of the State of
Andhra Pradesh, the appellant herein, Mr. P. Ram Reddy, learned counsel,
challenges the order dated January 17, 1964, of the Andhra Pradesh High Court,
setting aside the conviction of the respondents, for an offence under s. 4 (I)
(a), of the Andhra Pradesh (Andhra Area) Prohibition Act, 1937 (Act X of 1937),
hereinafter called the Act.
L9Sup. Cl/67-12 872 According to the
prosecution, the respondents were found transporting, in a bullock cart, on the
early morning of June 10 1962 fifty gallons of arrack. It is the case of the
prosecution that the prohibition staff found, on the day in question, a bullock
cart, driven by the first respondent, in which the fifty gallons of arrack were
found in 13 tins.
Accordingly, they were prosecuted for an
offence under s. 4 ( 1 )(a), of the Act. All the respondents substantially
denied, having committed the offence, with which they were charged.
The prosecution let in the evidence of the
Prohibition SubInspector, P.W.1, and another petty officer of the prohibition
staff, P.W.4. The evidence of these two witnesses, was to the effect that when
the bullock cart, in question, came near them, there was a smell of arrack. In
particular, P.W.4 has stated that the tins, which were in the bullock cart,
were pierced with bayonet, and when smelt, they gave a strong smell of arrack.
To corroborate the evidence of these two officers, the other witnesses,. P.Ws. 2
and 3, who were stated to have witnessed this occurrence, along with the
prohibition party, were also examined. They stated that when the bullock cart
came near them, they got a strong smell of arrack, and that the 12 tins were
pierced with bayonet ends and their contents verified. Only some of the
witnesses have been cross-examined, and the respondents, have suggested to them
that during that hour of the night, it would not have been possible for them to
identify the persons, who were stated to have been in the bullock cart.
No doubt, no specific suggestion, that the
commodity that was seized, is not one to which the Act applies, has been made.
During the trial, however the question appears to have been raised, among other
contentions, that the prosecution has not established the necessary ingredients
for establishing that the respondents have committed the offence, under s. 4(1)
(a), of the Act. The trial Court, adverting to this aspect, has referred to the
evidence of P.Ws.1 to 4, who speakto a strong smell of arrack, emanating from
the cart, and the tins being pierced with bayonet ends. In view of this
evidence, the trial Court is of the opinion that the ground for coming to the
conclusion, that it was arrack that was being transported, is established.
Ultimately, the trial Court accepted the evidence of the prosecution, found the
respondents guilty of the offence under s. 4 (I) (a) of the Act, and sentenced
each of them to undergo rigorous imprisonment for six months.
The respondents challenged their conviction,
before the learned Sessions Judge, Kurnool. Before the appellate Court also,
the respondents pleaded that there is no proper proof, in this case, that the
tins contained arrack. A mere statement, by the witnesses, that there was a
strong smell of arrack, emanating from the tins. when they were pierced with
bayonet ends, is not sufficient to 873 establish the guilt of the accused. They
have also specifically raised the contention that samples of the commodity
should have, been sent for the opinion of the Chemical Examiner. This plea, of
the respondents, was again brushed aside, by the learned sessions Judge, on the
ground that the prohibition officer must be considered to have got sufficient
experience of smelling and knowing whether a liquid was arrack, or not, and,
inasmuch as he has deposed that the liquid was found to be arrack, by smell,
that statement can be accepted as proof of the nature of the liquid that was
being transported, by the respondents. The learned Sessions Judge has also
stated that no further testing is called for. The learned Sessions Judge in the
end confirmed the conviction of the respondents.
The respondents carried the matter further,
to the High Court of Andhra Pradesh, in revision. The High Court has accepted
the plea of the respondents that, in this case, there has been no proper proof
that the commodity that was found to be transported, was' airrack. The High
Court is of the view that when the accused have denied the offence of carrying
any arrack, the prosecution should have got the commodity examined, by a
Chemical Examiner, and, inasmuch as that procedure has not been adopted, the:
High Court ultimately, set aside the conviction of the respondents.
On behalf of the appellant State, Mr. Ram
Reddy urged that, In this case, inasmuch as the prosecution has let in the
evidence of the Prohibition Inspector and the petty officer, who must be
considered to be well aware of arrack the High Court was not justified in
interfering with the decisions of the subordinate Courts.. Counsel has also
pointed out that the prosecution witnesses have spoken to the fact that the
contents of the tins were examined, by being pierced with bayonet ends and it
is, after such examination. the Prohibition Sub-Inspector satisfied himself
that the tins contained arrack.
There is no appearance, on behalf of the
respondents, before, us, in this Court.
This will be a convenient stage to refer to
the relevant provisions of the Act. Section 3 defines certain expressions.
`Intoxicating drug' is defined, under s. 3 (8), and s. 3 (9) defines 'liquor',
under which the commodity, in question, is stated to fall. 'Liquor' includes
toddy, spirits of wine, methylated spirits, spirits, wine, beer and all liquid
consisting of or containing alcohol. Under s.
4(1)(a), whoever imports, exports, transports
or possesses.
liquor or any intoxicating drug, shall be
punished imprisonment which may extend to six months or with fine which may
extend to one thousand rupees, or with both. In this case, according to the
prosecution, the respondents had transported liquor.
874 The expression 'liquor', as mentioned
earlier, is defined under :s. 3(9). The prosecution will therefore have to
establish that the .commodity in question comes under one or other of the
various items referred to in the definition of 'liquor'. The question is
whether the prosecution has so established, in this case.
In our opinion, in the circumstances of this
case, the High Court was perfectly justified in holding that the prosecution
has not established that the respondents are guilty of an offence, under s. 4
(1 )(a) of the Act. It is needless to state that, in this case, unless the
prosecution proves the contravention of the provisions -of the Act, in
question, it cannot succeed in establishing the guilt of the accused. For that
purpose, the prosecution will have to establish two things: (i) that the
article seized from the accused is 'liquor', under s. 3 (9) of the Act; and
(ii) that the accused 'transported' the same.
Except for a general statement, contained in
the evidence of the witnesses, particularly P.Ws. 1 and 4, that there was a
strong smell of alcohol, emanating from the tins, which were pierced ,open,
there is no other satisfactory evidence to establish that the article is one
coming within the definition of the expression 'liquor'. Merely trusting to the
smelling sense of the Prohibition Officers, and basing a conviction, on an
opinion expressed by those officers, under the circumstances, cannot justify
the conviction of the respondents. In our opinion, better proof, by a technical
person, who has considered the matter from a scientific point of view, is not
only desirable, but even necessary, to establish that the article seized is one
coming within the definition of 'liquor'.
Mr. Ram Reddy, learned counsel for the State,
no doubt pointed out that the accused have not challenged effectively the
answers given by the prosecution witnesses that the commodity is arrack. In our
opinion, the circumstance, pointed, out by the learned counsel, will not
absolve the prosecution from establishing the ingredients of the offence, for
justifying the conviction of the respondents.
Even otherwise, it will have to be noted that
all of them have, categorically, denied the offence and have also stated in
general terms, that no arrack was seized from them.
Before we close the discussion, it is
necessary to refer to a recent decision of this Court in Baidyanath Mishra v.
The State of Orissa(l). In that case, the question was as to whether the
appellants, therein, were in possession of opium, so as to make them liable for
an offence. The Opium Act of 1878, defines the expression 'opium'. The
appellants contended that the article (1) Crl. Ap. No. 270/1964 decided on
17-4-1967.
875 seized from them was not opium, as
defined in that Act, and pointed out that the only evidence, relied on by the
prosecution, to establish that the article recovered from them was opium, was
the evidence of the Prohibition staff, and that the article has not been
subjected to any chemical analysis. This Court rejected that contention, in the
particular circumstances of the case, and stated :
"It is true that opium is a substance
which once seen and smelt can never be forgotten because opium possesses a
characteristic appearance and a very strong and characteristic scent. It is
possible for people to identify opium without having to subject the product to
a chemical analysis. It is only when opium is in a mixture so diluted that its
essential characteristics are not easily visible or capable of being
apprehended by the senses that a chemical analysis may be necessary. .... Two
other witnesses who were cultivators and who knew what they were talking about
said that it was opium. If the appellants, who themselves were licensed vendors
of opium' had the slightest doubt about the correctness of these statements
they could have challenged them either by cross examination or by suggesting to
the co urt that the substance be analysed to determine whether it was opium or
not." These observations will clearly show as to why this Court in that
cases has expressed the view that there is no infirmity in the prosecution
case, simply because there has no chemical analysis made, of the commodity,
which, according to the prosecution, was opium. The facts in the instant case
before us, are entirely different, and the observations, extracted above, do
not apply.
In the result, the order of the High Court is
confirmed, and this appeal, dismissed.
Y.P. Appeal dismissed.
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