ROKHOLAMMA Vs. STATE OF ANDHRA PRADESH
HIGH COURT OF ANDHRA PRADESH
STATE OF ANDHRA PRADESH
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(1.)The petitioner was convicted
by the learned Judicial First Class
Magistrate of Boath under section 34 (1)
(A) and (F) of the Andhra 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, Uthoor
raided the house of the accused on 5th
January, 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 posts
as well as the bottles were smelling of
liquor. The learned Counsel for the
Petitioner 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, (1964) 2 An.W.RT 127 : (1964) M.L.J., (Cr.) 519 : A.I.R. 1964 A.P. 429.
and State of Andhra Pradesh v. Boosanna, (1968) 1 M.L.J. (S C.) 57 : (1968) 1 An.W.R.
(S.C.) 57 : (1968) M.L.J. (Crl.) 12 : (196.8) 1 S.C.J. 160 : A.I.R.. 1967 S.C. 1550,
In In re Madiga Boosanna, 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
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 the 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 opinion of an expert is
relevant but it 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'
support or rebut an inference suggested
by a fact in issue or relevant fact 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
(othtr 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 as liquor because of its
smell or who state that the article smells
of 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.
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