Case: The State of Andhra Pradesh Vs. Madiga Boosenna &amp; Others

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. 6. On behalf of the appellant State, Mr. Ram Reddy urged that, in the case, in-asmuch 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.7. There is no appearance, on behalf of the respondents, before us, in this Court. 8. 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 (3), 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 with 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. 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. 9. 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. 10. 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. 11. 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 circumstances, 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. 12. Before we close the discussion, it is necessary to refer to a recent decision of this Court in Baidyanath Mishra v. State of Orissa, Cri App. No. 270 of 1964, D/-17-4-1964 (SC). 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 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 court that the substance be analysed to determine whether it was opium or not." These observations will clearly show as to why this Court in past case has expressed the view that there is no infirmity in the prosecution case, simply because there has been 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]In this case, according to the prosecution, the respondents had transported liquor. 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 liquor9. 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 same10. 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.In our opinion, the circumstances, 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 themThese observations will clearly show as to why this Court in past case has expressed the view that there is no infirmity in the prosecution case, simply because there has been 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.