1. The revision petitioner has been convicted under Section 4(1)(j) of the Madras Prohibition Act, and sentenced to payment of a fine. The facts are almost identical with those in the case decided by Somasundaram, J., recently (Crl. R.P. No. 1022 of 1958) Since reported as Rathinam, In re : (1960)2MLJ449 and that is clear authority for the view that, where the appearances referred to in the decision are alone present, without further definite symptoms, no presumption arises that the offender had consumed prohibited alcohol. In such circumstances, it is duty of the prosecution to prove that prohibited alcohol had been consumed, and this proposition has been enunciated upon the authority of the Supreme Court decision in B.K. Pesikaka v. State of Bombay (1955) S.C.J. 73 : (1955) 1 M.L.J. 32 : (1955) A.W.R. 32, and following the decision of the Madras High Court in Palani Goundan v. The State : (1956)2MLJ273 , In the present matter, the signs found, according to the medical witness (P.W. 2) were purely these : the breath smelling of alcohol, congestion of the eyes, and dilation and sluggish reaction to light of the pupils. The speech and gait were normal, and this is a very significant circumstance. The defence was that the revision petitioner had consumed some indigenous medicine containing alcohol, prescribed for him by a homoeopathic practitioner. The symptoms noticed in the present case could very easily have been caused by the consumption of such a drug, and the absence of more definite symptoms is at least an indication that prohibited alcohol was not consumed.
2. In any event, the prosecution totally failed to discharge its burden of proof that the evidence was sufficient to warrant an inference that prohibited alcohol had been consumed. I, therefore, allow the revision and set aside the conviction and sentence upon the petitioner. The fine, if paid, will be refunded.