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Rokholamma Vs. State of Andhra Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1973CriLJ15
AppellantRokholamma
RespondentState of Andhra Pradesh
Excerpt:
.....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'.their lordships were dealing with an appeal against an order of acquittal by the high court......application. after all, the question whether a prosecution has succeeded in establishing that an article seized in a particular case is liquor or not must naturally depend on the facts of each case and the evidence adduced. neither the evidence act nor the excise act prescribes any particular mode of proof statutes like the prevention of food adulteration act and the drugs act prescribe certain modes of proof and insist on the prosecuting agency obtaining the opinion of the government analyst and even prescribe the scientific tests which should be carried out by the expert before he can venture an opinion. the excise act contains no similar provisions. it cannot. therefore, be insisted that there must be chemical analysis before a court can hold that an article is liquor. the failure.....
Judgment:
ORDER

Chinnappa Reddy, J.

1. The petitioner was convicted by the learned Judicial First class Magistrate of Boath under Section 34(1)(A) and (F) of the Aadhra Pradesh Excise Act and sentenced to undergo rigorous imprisonment for a period of two 'years. The prosecution case was that the, Sub-Inspector of Police, Utnoor raided the house of the accused on 8.1.1969 accompanied by panchas and found her in the act of distilling liquor. There were an oven with an earthen pot on it with boiling 'Gulmoha' wash, a bamboo 'Guttam' a wooden 'Chattu,' an earthen pot with 'Gulmoha' wash a gunny bag containing 15 Kgs. of 'Gulmoha' flowers and a. few bottles full of liquor. According; to the evidence of the panch witness the earthen pots as well as the bottles were smelling of liquor, The learned Counsel for the petitioners urged that there was no scientific analysis of the contents of the bottles and the earthen pots and. therefore, there was no proof that the pots and the bottles which were seized from the accused contained liquor. The learned Counsel relied on the decision in In Re Madiga Boosanna : AIR1964AP429 and State of Andhra Pradesh v. Boosanna : 1967CriLJ1398 . In In Re Madiga Boosanna : AIR1964AP429 Mirza. J., observed

When scientific methods are available to prove the fact of alcoholic content of an article, I think the prohibition officers should not be allowed 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 a conviction of a person charged under the Act. In these circumstances, the prosecution has failed to prove satisfactorily that the contents of the tins were either alcohol or arrack.

2. It is difficult to understand Mirza. J., as having laid down any principle of general application. After all, the question whether a prosecution has succeeded in establishing that an article seized in a particular case is liquor or not must naturally depend on the facts of each case and the evidence adduced. Neither the Evidence Act nor the Excise Act prescribes any particular mode of proof Statutes like the Prevention of Food Adulteration Act and the Drugs Act prescribe certain modes of proof and insist on the prosecuting agency obtaining the opinion of the Government Analyst and even prescribe the scientific tests which should be carried out by the expert before he can venture an opinion. The Excise Act contains no similar provisions. It cannot. therefore, be insisted that there must be chemical analysis before a Court can hold that an article is liquor. The failure of the prosecution to adduce expert evidence may perhaps be taken into consideration by the Court in arriving at a conclusion whether an article is liquor or not. But from the mere absence of expert evidence it cannot be concluded that the prosecution has failed to prove that the article is liquor, It should be remembered that the evidence of an expert is only to help the Court to arrive at a conclusion. Under the Evidence Act the opinion of an expert is relevant but it is never conclusive. If the evidence of an expert is not conclusive of a fact why should the absence of such evidence be treated as fatal?

3. In Section 3 of the Evidence Act, 'fact' is defined as to mean and include. 'anything state of things, or relation of things capable of being perceived by the senses.' Section 9 of the Evidence Act states.

facts...which support or rebut an inference suggested by a fact in issue or relevant factor or which establish the identity of any thing or person whose identity is relevant...or relevant in so far as they are necessary for that purpose.' Section 60 requires that oral evidence must be direct, and that if it refers to a fact which could be perceived by any other sense (other than seeing and hearing) it must be the evidence of a witness who says he perceived it by that sense Therefore, the oral evidence of witnesses who identify a certain article smells of liquor, leading to an inference that the article may be liquor is relevant. The weight to be attached to such evidence is another matter depending on the circumstances of each case. Most persons can perhaps. identify the smell of liquor and Excise officers whose duty it is to deal with these matters every day should certainly be able to identify the smell of liquor. It is true that certain medicinal preparations also emanate the smell of alcohol. Whether on the facts and circumstances of a particular case the article seized could have any connection with a medicinal preparation is a matter for the Court to consider. Where the article is seized from a person who cannot possibly have any connection with medicinal preparations it will be extremely fanciful to hold that the article might perhaps be a medicinal preparation. The person from whom the article is seized; the place where from it is seized, the quantity which is seized and the other surrounding circumstances must guide the Court in arriving at a conclusion whether scientific analysis is necessary or not in the circumstances of the case.

4. I am also not prepared to subscribe to the proposition of Mirza, J., that every possibility of doubt or suspicion must be excluded before there can be a conviction. The law does not lay any such onerous burden on the prosecution. All that the prosecution is expected to do is to prove its case beyond reasonable doubt. It is not expected to exclude every possibility of doubt or suspicion.

5. In : 1967CriLJ1398 their Lordships of the Supreme Court made the following observations:

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'.

Their Lordships were dealing with an appeal against an order of acquittal by the High Court. Their Lordships took care to emphasize that 'under the circumstances' the conviction could not be justified. In other words, their Lordships were confining the decision of the case to the facts of that case. No doubt their Lordships mentioned in the next sentence that scientific analysis may be desirable and even necessary. I do not think that their Lordships meant to lay down any axiomatic rule that in the absence of technical evidence no person can be convicted of being in possession of liquor etc.

6. In the instant case, apart from the fact that the liquid contained in the pots and the bottles was smelling of alcohol, the evidence shows that the instruments seized from the accused are instruments used in the manufacture of liquor. Further the gunny bag contained a large quantity of Gulmoha flowers which are also used for preparing liquor. At the time of the seizure the accused was actually operating the still. The accused is a villager who cannot possibly be said to have anything to do with the preparation of medicines. It was not also her case that what was seized from her was not liquor. It was also not suggested to the prosecution witnesses that what was seized from her was not liquor. In those circumstances I think that a legitimate inference can be drawn that the accused was engaged in the operation of illicit distillation of liquor notwithstanding the absence of any chemical analysis. It may be noted here that it was not even suggested to any of the prosecution witnesses that the pots did not contain liquor. The conviction and sentence are correct and the Criminal Revision Case is dismissed.


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