1. This is an appeal sought to be filed by the Public Prosecutor against the order of acquittal passed by the Stationary Sub-Mag. Puttur in C. C. No. 546 of 1950.
2. The prosecution was for an offence under Section 4(i)(j), Madras Prohibition Act. On 12-6-1950 the Sub-Inspector of Police, Vittal, went to the house of the accused to investigate into a complaint against the accused for offences under Sections 448 & 328, Penal Code & arrested the accused & when his person was searched, the Inspector found him smelling liquor. He was immediately sent to a nearby rural medical practitioner who found in him signs & symptoms of having consumed alcohol. The accused was thereuponcharge-sheeted for an offence under Section 4 (i) (j), Madras Prohibition Act which runs thus :
'Whoever consumes or buys liquor or any intoxicating drug shall be punished with.' The lower Ct. acquitted the accused mainly on the ground that the smell of alcohol was possible for reasons other than drinking liquor such as taking medicine like asava or arishta & theevidence of consuming liquor being based mainly on the smell, it was not conclusive. The other symptom of incoherent talk was found by the Mag. as likely to be due to the perturbation & fear of the accused by the arrest & search by the police. The redness of the eyes was also explained away by saying that it may be due to weeping & it was admitted that the accused was weeping when he was arrested taken to the Doctor,
3. It is contended by the Public Prosecutor that this being a prosecution for an offence under Section 4 (i) (j) it is covered by Section 4 (2) under which it shall be presumed until the contrary is shown that a person accused of any offence under Clauses (a) to (j) of Sub-section (i) has committed such offence in respect of the liquor or intoxicating drug etc. for the possession of which he is unable to account satisfactorily & the accused must therefore prove his innocence. There is no doubt that this clause raises the presumption of guilt in respect of an offence mentioned in Section 4 (1) (a) to (j). But it is clear from the wording of the section that it is only where from the possession of any of the things mentioned in the section the offence is sought to be proved that the presumption is raised. Proof of possession of the things mentioned is a pre requisite for raising the presumption. In this case it is neither proved nor it is contended that the accused was in possession of any liquor or intoxicating drug. What is contained in the stomach is not what is contemplated in the term possession in the section. Even so there is no proof of what was in his stomach. What can be said to have been established beyond all doubt is that the accused was smelling something similar to what arises from a drink of alcohol. This will not raise the presumption mentioned in Section 4 (2). Section 4 (2) ismore or less similar to Section 64, Madras Abkari Act I  of 1886 which raises the presumption in respect of an offence mentioned in Section 55 of that Act. Section 55 does not contain any clause similar to Section 4 (i) (j). But the other clauses of 3. 55 of the Act with slight amendments from Section 4 (1) (a) to (i). The Legislature in enacting the Madras Prohibition Act has bodily taken Section 55 (a) to (i) with suitable amendments & added two more Clauses (j) & (k) & re enacted Section 64, Abkari Act as Clause (2) of Section 4. In so doing a portion of Section 4 (1) (j) to which possession will not apply has been overlooked. The result is that the presumption will apply to a portion of Section 4 (1) (j) but not to the whole of it. The presumption will apply to that portion which deals with buying liquor or any intoxicating drug where possession can be proved. In this case as already stated the possession of any liquor or intoxicating drug has not been proved. Only smell of liquor having been found, the presumption cannot apply. In the absence of presumption the question involved in this case is one of fact. I am unable to say that the Mag. was wrong in drawing the inference which he has drawn on the evidence. I, therefore, see no reason to interfere with the order of acquittal & the appeal is dismissed.
4. I am indebted to Mr. K.V. Ramaseshan for his valuable assistance to the Ct. as a amicus curia.