PETITIONER: STATE OF ANDHRA PRADESH Vs. RESPONDENT: MADIGA BOOSENA & ORS. DATE OF JUDGMENT: 02/05/1967 BENCH: VAIDYIALINGAM, C.A. BENCH: 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. JUDGMENT:
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 Sub-
Inspector, 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 speak- to 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 imprison-
ment 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 avery 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.
876