Full Judgment
Mohammed Mirza, J.
1. The petitioners were convicted by the trial Court under Section 4 (1) (A) of the Prohibition Act and their convictions and sentences were confirmed on appeal by the Addl. Sessions Judge, Kurnool. In this revision petition, the point raised before me is that, the prosecution did not prove by convincing and cogent evidence that the alleged article that was seized from the petitioners, which they are alleged to be transporting, was arrack or alcohol or any prohibited article. Both the Courts below have relied on the evidence of P. W. 1, who is the Sub-Inspector and P. W. 4, who is a petty-officer of the Prohibition Department. They have stated that one tin was not sealed and when they smelt, it was found to be arrack. Then again all the seals of the other 12 tins were pierced and they also smelt of arrack'. This evidence has been accepted by both the Courts below. The petitioners, while being examined by the trial Magistrate under Section 342, Cr. P. C., denied that they were carrying on any alcohol or arrack.
In this situation, the first point for consideration by the lower Courts was, whether the tins that were seized from the petitioners did really contain arrack. The prosecution has confined itself to examining P. Ws. 1 and 4, who are the officers of the Prohibition Department. It cannot be that what they say has to be accepted without any judicial scrutiny. Other methods are open to the prosecution to prove that what was seized from the petitioners was arrack, it was not difficult for the prosecution to have sent the contents of the tins that were seized for chemical examination and to have taken the stand on the report which would have been submitted to it. Mr. Ayyapu Reddy appearing for the Petitioners, has cited a number of rulings, Pesika v. State of Bombay, 0065/1954 : 1955 CriLJ215 , Balaram, In re, (1957) 2 Audh W R 413, In re, Shanmugam, AIR 1954 Mad 371), D.K. Merchant v. State of Bombay. 0065/1959 : AIR1959 Bom199 , Rathinam, In re, (1960) 2 Mad L J 441) and Public Prosecutor v. Chaniappa, : AIR1951 Mad703 in support or his stand that mere smell is not enough to prove the fact that it was alcohol.
Mr. Somakonda Reddy on behalf of the State has attempted to distinguish these rulings on the basis that all those cases relate to incidents where alcohol was consumed and not found in any tin or vessel. Further, he submits that in all those cases the plea of the accused was that they had not consumed liquor or any article that was prohibited under, the Act and that in those circumstances the inference drawn wasthat the accused might have consumed something which was not prohibited, because the prosecution had failed to prove that it was only alcohol or any prohibited drug that was consumed by the accused. Here, he submits that the facts are quite different. The arrack was being transported in tins and the prohibition officers, who have to deal with such cases are quite competent to distinguish arrack from some other article by its smell and their evidence should be accepted by the Court.
The real point decided in those cases, in my view is the manner in which the prosecution should discharge the onus of proving the presence or possession if prohibited liquor. The smell of liquor was not considered sufficient to raise a presumption against a person charged for an offence under the Act. In these circumstances, it was to be expected that the prosecution when they had seized the arrack would get it examined by the Chemical Examiner. The prosecution has adopted an easier course of examining its own officers to prove the contents of the tins only by smell. If this is to be accepted as a general rule, it would be giving a very large latitude to the prohibition officers to prove alcoholic content of any prohibited article or drug under the Act by mere smell.
When scientific methods are available to prove the fact of alcoholic content of an article, I think the prohibition officers should not be allotted to confine proof of such an article by their mere oral statements because the primary duty of the prosecution is to exclude every possibility of a doubt or suspicion before they ask for the conviction of a person charged under the Act. In these circumstances, the prosecution has failed to prove satisfactorily that the contents of the tins ate either alcohol or arrack.
2. The appeal is, therefore, allowed and the petitioners are acquitted, or the charge levelled against them. Their bail bonds be cancelled.