THIMMIAH Vs. STATE OF MYSORE
LAWS(KAR)-1966-1-4
HIGH COURT OF KARNATAKA
Decided on January 19,1966

THIMMIAH Appellant
VERSUS
STATE OF MYSORE Respondents





Cited Judgements :-

SANJEEV VS. STATE [LAWS(DLH)-2009-5-256] [REFERRED TO]
SANJEEV NANDA VS. STATE [LAWS(DLH)-2009-7-151] [REFERRED TO]


JUDGEMENT

- (1.)The Petitioner, who is the accused, has been convicted under Section 76(2) of the Maysore Prohibition Act and sentenced to seven days' rigorous imprisonment and also to pay a fine of Rs. 25/- in default to undergo simple imprisonment for one week. He filed an appeal against the said conviction and sentence to the learned Sessions Judge of Coorg, Mercara, which was dismissed and the said conviction and sentence was confirmed. He has come up to this Court in revision questioning the correctness of the said Order.
(2.)Sri Dasappa, the learned Counsel for the Petitioner has contended that there is no sufficient evidence that the petitioner was found drunk. He argues that it is the duty of the prosecution to prove the case and the onus is always on the prosecution to prove that the accused had consumed prohibited liquor. He further contends that the defence of the accused was that ho had taken B. G. Phos and the evidence of the Doctor coupled with the statement of the accused and the medical certificate produced by him, establish the case of the accused that he had not taken any alcohol but had taken only some medicinal preparation. He also contends that the medical certificate produced by the accused in this case need not be formally proved by examining the doctor as Section 86 of the Prohibition Act permits the same. He also argues that the learned Sessions Judge has not relied on the evidence of P. W. 2 and as such this Court, should not act on his evidence.
(3.)He has strongly relied on the decision of the Supreme Court in Behram Khurshid v. Bombay State, AIR1955 SC 123 , (1955 )57 BOMLR575 , 1955 CriLJ215 , [1955 ]1 SCR613 in which it has been observed as follows:
"The bare circumstance that a citizen accused of an offence under Section 66 (b) is smelling of alcohol is compatible both with his innocence, as well as his guilt. It is a neutral circumstance. The smell of alcohol may be due to the fact that the accused had contravened the enforceable part of Section 13(b) of the Prohibition Act. It may well be due also to the fact that he had taken alcohol which fell under the unenforceable and inoperative part of the section. That being so, it is the duty of the prosecution to prove that the alcohol of which he was smelling was such that it came within the category of prohibited alcohols and the onus was not discharged or shifted by merely proving a smell of alcohol."



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