Somasundaram, J. -
(1.) P .W. 3, Head Constable attached to the District Intelligence Burean stationed at Pondicherry, found at 8 p.m. on 17th August 1968, some gunny bags being leaded into the car M.S.V. 6052 from the shed of one Krishnamurthi, proprietor of a liquor bar at Pondicherry. The loading was done by this Petitioner and another Chinnappayan. P.W. 3 passed on this information to the D.S.P. P.I.B. Madras and the D.S. Ps. at Tindivanam and at Chingleput, and informed them that this car loaded with contraband liquer would pass through Markanam and Thirakalikundram to Madras, either on the night of 17th August 1968 or in the morning of 18th August 1968. The D.S.P., Tindivanam directed P.W. 1, the Sub -inspector at Markanam to proceed to Asappur with a party and lie in wait for intercepting this car. The latter waited at the cause way across the Asapur river with his men. The car came at 5 -15 p.m. on 18tb August 1968. Stop signal was given. It did not stop, but speeded up and dashed against a rosk on the right side of the road at a distance of 25 yards from that place. The right front tyre burst and it swerved towards the left and dashed against a stationary bus MSX, 7185. P.W. 1 and his party rushed to that place. The person who was at the wheels got down and made good his escape. The Petitioner was seated in the front seat. P.W. 1 opened the door of the car and found a gunny bag near the seat occupied by the Petitioner. 12 full bottles of golden grape brandy with company seals and labels in tact were in this bag. The dicky of this car was opened with the key (M.O. 4) produced by the Petitioner. 9 gunny bags, each containing 12 bottles of this brandy, were seized from the dicky, under mahazar Ex. P. 1. The Petitioner was put up for trial under Section 4(1)(a) of the Madras Prohibition Act. P.W. 1 spoke to the above facts. P.W. 2 who was at the scene, corroborated him. When questioned in court, the Petitioner sated that when he was standing in the bus step at Asapur, one constable came and took him to the police station. He farther stated that the case has been falsely foisted against him. Observing that this Petitioner had transported the bottles with the necessary knowledge, the learned Magistrate convicted him under Section 4(1)(a) and sentenced him to suffer rigorous imprisonment for four months. On appeal, the learned Sub -Divisional Magistrate, Villupuram, has affirmed this conviction. The Petitioner contends that this conviction is not correct.
(2.) THERE is no evidence in the case to show that the Petitioner had knowledge that the gunny bags that were found in the car contained prohibition liquor. P.W. 3, the Head Constable, merely states that he saw some gunny bags being loaded in this car, by this Petitioner and another at 8 p.m. on 17th August 1968 from the shed of one Krishnamurthi at Pondicherry, He admits that be did not actually see whether there were brandy bottles inside the gunny bags. He suspected the bags to contain liquor bottles, since the said Krishnamurthi is a known smuggler. Even P.W. 1, the Sub -Inspector, who seized those bags from the car merely states than there was a bag on the front seat in between the Petitioner and the driver. This bag was stitched with jute coir. He opened and when examined he found this bag to contain 12 full bottles of golden grape brandy. The brandy bottles were intact and the company labels were there. Therefore, there is not even a possibility of any smell emanating from these bottles, from which it might be possibly be said that this Petitioner should have had knowledge about the presence of brandy in the bottles in the gunny bags. The expression 'liquor' is defined under Section 3(9) of the Prohibition Act as toddy spirits of wine methylated spirits, spirits, wine, beer and ail liquid consisting of or containing alcohol. Under Section 4 (1)(a) , whoever imports, exports, transports or possesses liquor or any intoxicating drug, shall be punished with imprisonment which may extend to six months or with fine, which may extend to one thousand rupees, or with both. The prosecution will, therefore, have to establish that the bottle in question transported by the Petitioner comes under one or other of the various items referred to in the definition of liquor. As held by the Supreme Court in State of Andhra Pradesh v. Madiga Boosenna, 1967 L.W. Cri. 103 unless the prosecution proves the contravention of the provisions of the Act it cannot succeed in establishing the guilt of the accused. They farther said that 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 accused, and that 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". In State of Gujarat v. Chinubhai (2) their Lordships have pointed out that an examination of random samples can be made in such cases and if they satisfy the court that the bottles contain contraband staff the bottles can be confiscated on the ground that they contain prohibited items. Therefore, in such cases it is necessary that for establishing that there was transport of liquor prohibited some random bottles are taken and checked by experts to show that these bottles contained liquor. There is no proof in this case to show that the bottles that were seized contained liquor as defined in the Prohibition Act. Thus, there is no evidence in this case to show that this Petitioner had knowledge that the bags that were found in the car contained prohibited liquor. Even P.W. 3 merely suspected the bags to contain brandy bottles, because they were loaded from a shed near the house of one Krishnamurthi, who, according to him, is a smuggler. Mere suspicion cannot be a substitute for legal proof and no conviction could be based on such suspicion. The only evidence against the Petitioner is that he loaded the bags and was later seated in the front seat, The driver of this vehicle had made good his escape after abandoning the car. There is no proof that the bottles contained prohibited liquor so as to bring it within the ambit of the Prohibition Act. The revision is allowed and the Petitioner is acquitted.;