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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.

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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

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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

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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

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             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