BAIL SLIP --- The Appellant/Accused namely (i.e.) Amirtham was directed to be released on bail as per order of this Hon'ble Court dated 3.12.03 in Crl.M.P.No.12278/02. IN THE HIGH COURT OF JUDICATUE AT MADRAS DATED: 21.01.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.No.1694 of 2002 Amirtham .. Appellant/Accused Vs. State: rep. by The Inspector of Police, Prohibition and Enforcement Wing, Guindy Unit, Chennai. .. Respondent/Complainant Criminal Appeal against the judgment, dated 15.11.2002 in S.C.No.280 of 2002 on the file of the Additional District and Sessions Court (Fast Track Court), Chennai-1. For appellant : Mr.R.C.Paul Kanagaraj For respondent: Mr.I.Paul Noble Devakumar, Govt. Advocate (Crl. Side) JUDGMENT The Criminal Appeal arises out of the judgment, dated 15.11.2002 in S.C.No.280 of 2002 on the file of the Additional District and Sessions Court (Fast Track Court), Chennai-1, whereby the appellant- accused was convicted for the offence under Section 4(1)(i) of the Tamil Nadu Prohibition Act and sentenced to undergo one year rigorous imprisonment, also convicted for the offence under Section 4(1)(aaa) of the Tamil Nadu Prohibition Act and sentenced to undergo three years' rigorous imprisonment and also convicted for the offence under Section 4(1-A) of the Tamil Nadu Prohibition Act and sentenced to undergo two years' rigorous imprisonment. The sentences imposed on the appellant-accused were directed to run concurrently.' 2. The case of the prosecution is as follows: https://hcservices.ecourts.gov.in/hcservices/ (a) The respondent-Inspector of Police, Prohibition and Enforcement Wing, Guindy Unit, Chennai, filed the charge sheet against the appellant-accused in Cr.No.1718 of 2001, stating that the accused possessed 35 litres of country arrack in three plastic cans with intoxicating drugs with poisonous substance, stating that on 26.10.2001, P.W.1 Sathish, Sub-Inspector of Police, P.W.2 Selvam Head Constable and one Tamilarasi, Sub-Inspector of Police while raid was conducted at Annai Sathya Nagar at 9 a.m. (b) At that time, the persons who were consuming drugs, attempted to escape from the place, but the Women Sub-Inspector of Police Tamilarasi immediately caught hold of the accused, and others escaped from the place. Then, they followed the procedures and seized the samples as per the provisions of law. Two 500 ml. bottles from each can totalling six samples, have been taken as per Ex.P-2 mahazar in the presence of P.W.2 Selvam, Head Constable and one Ethiraj, Constable and after obtaining permission from the superior officer, the remaining arrack has been destroyed. The destruction mahazar is Ex.P-6. (c) Then, they returned to Police Station and P.W.1 Sathish, Sub-Inspector of Police, gave complaint, which was received by P.W.4 Muniyandi, Inspector of Police, Prohibition and Enforcement Wing, and a case was registered in Cr.No.1718 of 2001 and Ex.P-1 F.I.R. was prepared for the offences under Sections 4(1)(i), 4(1)(aaa) and 4(1- A) of the Tamil Nadu Prohibition Act and the accused was remanded to judicial custody. (d) At the time of search, M.O.1 Rs.50/- and M.O.2 Rs.10/- (totalling Rs.60/-) have been seized from the accused. Two ever- silver tumblers were also seized and they were marked as M.Os.3 and 4. The sample bottles were marked as M.O.5. series. (e) Ex.P-7 requisition was made by the investigating agency to send the material objects for chemical analysis. P.W.3 Tamilselvi conducted chemical analysis and gave Ex.P-4 report, stating that the samples contained 8.89 mgm. of atropine. (f) After concluding the investigation, P.W.4 Inspector of Police filed charge sheet against the accused for the offences under Sections 4(1)(i), 4(1)(aaa) and 4(1-A) of the Tamil Nadu Prohibition Act. 3. The trial Court posed questions on the appellant-accused under Section 313 Cr.P.C., and she denied the charges. During the course of trial, P.Ws.1 to 4 were examined, Exs.P-1 to P-7 were marked and M.Os.1 to 5 were produced. Considering the oral and documentary evidence, came to the conclusion that the accused is guilty of the offences and convicted and sentenced the appellant- accused as indicated above. https://hcservices.ecourts.gov.in/hcservices/ 4. Challenging the said conviction and sentence passed by the trial Court, learned counsel for the appellant-accused would contend that the trial Court has not considered non-examination of Tamilarasi, the Sub-Inspector of Police who accompanied for the raid and made search on the accused and seized the materails, which is fatal to the case of the prosecution. 5. Learned counsel for the appellant further contended that P.Ws.1, 2 and 4 are Police officials and P.W.3 is the Chemical Analyst and no independent witness was examined. On the basis of only the official witnesses, who are the interested witnesses, the conviction has been passed. Non-examination of independent witness is fatal to the case of the prosecution. 6. Learned counsel for the appellant-accused further submitted that it is the case of the prosecution that the persons were consuming arrack from the accused and no one has been caught hold by the raid party and produced before Doctor to find out as to whether they sustained any injury or took treatment due to consumption of the poisonous substance in the alleged arrack from the accused. 7. Learned counsel for the appellant further contended that the case in question is a ground case for arresting the accused under Tamil Nadu Act 14 of 1982 (Goondas Act) and hence, the accused, while she was posed questioning under Section 313 Cr.P.C., stated that she is doing only vegetable business, and stated that a false case has been foisted against her and she was detained under Goondas Act. Learned counsel prayed for acquittal of the appellant-accused. 8. Per contra, learned Government Advocate (Criminal Side) would contend that since no one from the public was willing to attest the observation mahazar, seizure mahazar, etc., and that no one was willing to give evidence before Court, non-examination of the independent witness will not be fatal. Likewise, non-examination of Tamilarasi, Women S.I. Of Police is also not fatal to the case of the prosecution. In the present case, P.Ws.1 and 2 who are also members of the raid party, have deposed cogently and there is no reason to discard their evidence. Their evidence is natural, cogent, convincing and trustworthy and hence, the same is reliable. Only on that basis, the trial Court has come to the conclusion that the accused is guilty of the offences. Furthermore, the evidence of P.W.3 Chemical Analyst who deposed before Court shows that the arrack seized from the accused contained atropine and Exs.P-4 and P-5 also prove the same. Learned Government Advocate prayed for dismissal of the Criminal Appeal. 9. It is true that no independent witness was examined. It is the duty of the prosecution to prove the charges levelled against the accused, beyond reasonable doubt. https://hcservices.ecourts.gov.in/hcservices/ 10. The first charge is under Section 4(1)(i) of the Tamil Nadu Prohibition Act. Section 4(1)(i) of the Tamil Nadu Prohibition Act reads as follows: "Section 4. Prohibition of the manufacture of, traffic in, and consumption of liquor and intoxicating drugs.--(1) Whoever--. (a) .... ...... (b) .... .... (i) sells liquor or any intoxicating drug; or ....." 11. P.Ws.1 and 2 and one Tamilarasi, Women S.I. Of Police, formed a team and conducted a raid in Annai Sathya Nagar, where they arrested the appellant-accused. At that time, it was the case of P.Ws.1 and 2 that the accused possessed totally 105 litres of country arrack and she also possessed Rs.60/- being the sale proceeds of the arrack. The said Tamilarasi, Women S.I. Of Police has not been examined. P.Ws.1 and 2 are Police officials and there is no reason for discarding their evidence. Before the trial Court, the cross examination of P.W.1 was only in respect as to why no one from the public, attested the public documents, namely seizure mahazar, destruction mahazar etc. P.W.1 gave convincing answer and that they requested the general public and neighbours, but they refused to come as a witness. So, there is no chance for the prosecution to examine any independent witness. So, non-examination of the independent witness is not fatal to the case of the prosecution, because, P.W.1 gave reasons as to why no one from the public has been examined as independent witnesses. 12. Furthermore, no motive has been assigned by the accused. It is also true that the accused was detained under Goondas Act, after filing of the present case. 13. Hence, the possession and sale of arrack have been proved by the prosecution beyond reasonable doubt. The trial Court has come to the correct conclusion that the appellant-accused is guilty of the offence under Section 4(1)(i) of the Tamil Nadu Prohibition Act. 14. Next, it has to be decided as to whether the appellant- accused is guilty of the offence under Section 4(1)(aaa) of the Tamil Nadu Prohibition Act. Section 4(1)(aaa) reads as follows: "Section 4. Prohibition of the manufacture of, traffic in, and consumption of liquor and intoxicating drugs.--(1) Whoever--. https://hcservices.ecourts.gov.in/hcservices/ (a) .... (aaa) imports, exports, transports or possesses liquor of one hundred litres and above; or ...." 15. As per the evidence of P.Ws.1 and 2, at the time of raid, the accused possessed 3 cans, each containing 35 litres of arrack, and for having sold the same, she possessed sale proceeds for Rs.60/- and she also possessed eversilver tumblers, marked as M.Os.3 and 4. So, according to the prosecution, at the time of raid, the accused possessed more than 100 litres of arrack, and so, the ingredients of Section 4(1)(aaa) of the Tamil Nadu Prohibition Act, have been proved by the prosecution. The trial Court has come to correct conclusion that the accused is also guilty of the offence under Section 4(1) (aaa) of the Act. 16. Next, it has to be decided as to whether the accused is guilty of the offence under Section 4(1-A) of the Tamil Nadu Prohibition Act. Section 4(1-A) of the Tamil Nadu Prohibition Act reads as follows: "Section 4. Prohibition of the manufacture of, traffic in, and consumption of liquor and intoxicating drugs.-- .... .... (1-A): Where in the case of an offence falling under clause (a), clause (aa), clause (aaa), clause (b), clause (h), or clause (i) of sub-section (1), the liquor or any intoxicating drug involved contains any ingredient which is likely to cause death or grievous hurt to the consumer, then the offender, on conviction, shall be punished-- (i) if death has ensued due to its consumption with rigorous imprisonment for life and with fine which shall not be less than five thousand rupees; and (ii) in any other case, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to seven thousand rupees." 17. At the time of arrest, P.Ws.1 and 2 have deposed that they have taken samples as per the Rules and that was marked as Ex.P-2 seizure mahazar. The samples of arrack seized were sent for chemical analysis. On the basis of the requisition given by the investigating agency, P.W.3 did chemical analysis and it has been proved that the samples contained the poisonous substance called atropine of 8.89 mg. The chemical analyst has also stated that the atropine is poisonous substance. There was no cross examination of P.W.3 on this aspect. P.W.3's evidence as well as Ex.P-4 report of the chemical analyst https://hcservices.ecourts.gov.in/hcservices/ proved that the material objects seized from the accused contained the poisonous substance called atropine. So, the accused is also guilty of the offence under Section 4(1-A) of the Tamil Naud Prohibition Act. The trial Court has come to correct conclusion that the appellant-accused is guilty of the offence under Section 4(1-A) of the Tamil Nadu Prohibition Act. 18. As narrated above, the trial Court considered the evidence of P.Ws.1 to 4 and Exs.P-1, P-2 and P-4 and came to the correct conclusion that the appellant-accused is guilty of the offences under Sections 4(1)(i), 4(1)(aaa) and 4(1-A) of the Tamil Nadu Prohibition Act. Hence, I do not find any illegality or infirmity in the judgment and conviction passed by the trial Court. I concur with the findings of the trial Court. 19. At this juncture, learned counsel for the appellant-accused contended that leniency may be shown on the quantum of sentences imposed on the appellant-accused by the trial Court, stating that she has already undergone imprisonment under Tamil Nadu Act 14 of 1982 (Goondas Act) and prayed for reduction of the sentence. 20. While considering the above argument advanced by learned counsel for the appellant, since it is stated that no one has been affected after consumption of the arrack purchased from the accused, I am inclined to reduce the sentences imposed on the accused, while confirming the conviction. 21. Accordingly, the Criminal Appeal is dismissed. (a) The conviction imposed on the appellant-accused for the offences under Sections 4(1)(i), 4(1)(aaa) and 4(1-A) of the Tamil Nadu Prohibition Act, is confirmed. (b) Even though the trial Court found the accused guilty of the offence under Section 4(1)(i) of the Tamil Nadu Prohibition Act, as per the evidence of P.W.3, the arrack contained poisonous substance. The appellant-accused is guilty of the offence under Section 4(1)(i) of the Act, as the arrack consisted of poisonous substance. So, the trial Court has sentenced the appellant-accused to undergo one year rigorous imprisonment. Hence, the sentence of imprisonment, namely one year rigorous imprisonment, for the offence under Section 4(1)(i) of the Tamil Nadu Prohibition Act is confirmed. (c) The sentence of imprisonment imposed on the accused for the offence under Section 4(1)(aaa) of the Tamil Nadu Prohibition Act, is reduced from three years to one year rigorous imprisonment. (d) The sentence of imprisonment imposed on the accused for the offence under Section 4(1-A) of the Tamil Nadu Prohibition Act, is reduced from two years to one year rigorous imprisonment. https://hcservices.ecourts.gov.in/hcservices/ (e) The above sentences imposed on the appellant-accused shall run concurrently. (f) Since the appellant-accused is on bail, the trial Court is directed to take steps to secure her custody to undergo the remaining period of sentence. (g) The sentence of imprisonment already undergone by the appellant-accused shall be set off under Section 428 Cr.P.C. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar cs To 1. The Additional District and Sessions Court (Fast Track Court), Chennai-1. 2.-do- Through The Principal Sessions Judge, Chennai. 3.The V Metropolitan Magistrate, Egmore, Chennai. 4.The Chief Metropolitan Magistrate, Egmore, Chennai-8. 5.The Superintendent, Special Prison for Women, Vellore. 6.The Director General of Police, Mylapore, Chennai. 7.The District Collector, Chennai. 8. The Inspector of Police, Prohibition and Enforcement Wing, Guindy Unit, Chennai. 9.The Public Prosecutor, High Court, Madras. 10.The Section Officer, Criminal Section, High Court, Chennai. Crl.A.No.1694 of 2002 NSM {CO} TP/29.1.2010. https://hcservices.ecourts.gov.in/hcservices/