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State Of Kerala v. Sreedharan
Factual and Procedural Background
This is an appeal filed by the State against the judgment of the Sub-Magistrate, Tellichery, which had acquitted the accused of an offence under section 8(1)(a) of the Kerala Prohibition Act. On 23-1-64 at about 1:30 p.m., two police constables (PWs 1 and 2) on patrol along the Tellichery–Coorg trunk road observed the accused approaching in the opposite direction. The accused fled, was chased and apprehended. The police seized three bottles of arrack (marked M.O.1 series) from the accused and a rope (M.O.2) used to fasten the bottles about his waist. Two jutka drivers (PWs 3 and 4), in front of whose jutka the accused was arrested, witnessed the seizure and attested the mahazar (Ext. P-2) prepared at the place.
The learned Magistrate disbelieved the prosecution witnesses and acquitted the accused. On appeal by the State, the High Court reviewed the evidence and the legal principles governing proof of the contents of the seized bottles under the Prohibition Act.
Legal Issues Presented
- Whether the prosecution proved that the bottles recovered from the accused contained "liquor" within the meaning of the Kerala Prohibition Act (s. 8(1)(a) read with the definition of "liquor" in s. 7(8)).
- Whether the mere smell of a liquid (as perceived by police or other witnesses) is sufficient proof, in the absence of chemical analysis or a public analyst's certificate, to establish that the contents were a prohibited liquor.
Arguments of the Parties
Appellant (State / Learned State Prosecutor)
- Challenged the acquittal and relied on the seizure evidence (three bottles and rope) and witness testimony regarding recovery.
- Relied on decisions of this Court (State v. Narayanan; State v. Bhavani) to show that in some cases the opinion of experienced excise officers who smelt and tasted seized liquids had been accepted as sufficient to establish the contents as illicit liquor.
Respondent (Accused / Learned Counsel for Accused)
- Conceded that there was no doubt about the fact of seizure — the bottles and rope were recovered from the accused.
- Contended that there was no evidence that the bottles contained "liquor" as defined in the Act, because the samples were not sent to a chemical analyst and there was no analyst's certificate.
- Argued that the evidence relied upon (primarily the smell of the liquid) was insufficient to prove that the liquid was arrack or otherwise within the statutory definition of liquor.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Bhimsinghji v. State of Bombay (AIR 1960 SC 483) | Smell alone, without analysis, is insufficient to prove that a liquid is liquor or that it is an intoxicant within the meaning of the prohibition statute. | The court cited this decision to support the proposition that uncorking and a smell of liquor, without chemical analysis, does not establish the necessary fact that the substance was liquor under the Act. |
| Behram Khurshid Pesikaka v. State of Bombay (AIR 1955 SC 123) | A mere smell of alcohol is compatible with both innocence and guilt; prosecution must prove that the alcohol smelled of falls within prohibited categories — smell alone does not discharge the burden. | Cited to emphasize the prosecutorial burden to prove the character of the substance and that a smell is not enough to meet that burden. |
| Re Madiga Boosenna (AIR 1964 A.P. 429) | When scientific methods are available, prohibition officers should not rely solely on oral statements (smell) to prove alcoholic content; prosecution should have seized items examined by a chemical examiner. | Used to reinforce the requirement that seized liquor should be sent for chemical examination and that smell alone cannot be accepted as general proof of alcoholic content. |
| Re Ramapuram Ayyanna (AIR 1963 A.P. 334) | For conviction under a prohibition/opium-type statute, prosecution must prove (1) possession and (2) that the substance falls within the statutory definition; expert analysis is necessary and the expert's opinion must be before the court. | Cited to underline that expert analysis is required to prove that a seized substance is the prohibited material, especially where the offence is one of strict liability/possession. |
| State v. Narayanan (1962 KLT 31) | Experienced excise officers can be treated as experts as to whether a liquid is "liquor"; evidence of smelling and tasting, together with the data underlying their opinion, can be relied on. | Relied upon by the State; the court distinguished that case from the present facts because there the witnesses were experienced excise officers who had tasted and smelled the liquid and supplied the basis for their opinion. |
| State v. Bhavani (1963 KLT 549) | An excise guard with long experience who tasted and smelt a fermented liquid can give evidence sufficient to establish it as a prohibited fermented wash. | Also relied on by the State; the court contrasted the experience and conduct of witnesses in that case with the present case where the police constables lacked comparable experience and did not taste the liquid. |
Court's Reasoning and Analysis
The Court reviewed the evidence and applied established legal principles. The principal steps in its analysis were:
- Credibility of seizure evidence: The Court found that PWs 1 and 2 (the two police constables) gave cogent evidence of the seizure of three bottles and a rope from the accused. Trivial verbal discrepancies (e.g., whether the accused was in the middle or side of the road, or precisely where each constable caught him) were held immaterial and insufficient to discredit their testimony. The learned counsel for the accused conceded that the seizure itself could not be doubted on the evidence.
- Legal requirement to prove contents: The Court noted that section 8(1)(a) of the Kerala Prohibition Act makes possession of liquor an offence and that "liquor" is defined in section 7(8) to include various alcohol-containing liquids. Therefore, proof that the bottles actually contained liquor was an essential ingredient of the offence.
- Lack of chemical analysis / analyst's certificate: It was admitted that the seized sample was not sent to a chemical analyst and no certificate from such an analyst was produced. The Court surveyed authorities (including several decisions of the Supreme Court and High Court) holding that mere smell was not sufficient, and that where scientific methods are available the prosecution should have the seized article examined by an expert.
- Distinguishing precedents: The Court acknowledged precedents where experienced excise officers who had tasted and smelt the liquid and who explained the basis of their opinion were accepted as experts (e.g., State v. Narayanan; State v. Bhavani). In contrast, in the present case the witnesses who described smelling the liquid were two police constables with practically no experience in detecting prohibition offences; none of the witnesses said they tasted the liquid and only PW 2 stated that he and the other witnesses smelt it.
- Application of the "best evidence" principle: The Court emphasized the salutary principle that the best available evidence should be produced to prove such a fact. While inferior evidence is not strictly excluded, when scientific analysis is available and the offence depends on the composition of a substance, the prosecution should obtain expert analysis and a certificate.
- Conclusion on reasonable doubt: Given the absence of a public analyst's report and the limited experience of the witnesses who relied primarily on smell, the Court held that the identity of the liquid as "liquor" within the meaning of the Act was not established beyond reasonable doubt.
Holding and Implications
HOLDING: The appeal filed by the State is dismissed and the accused's acquittal is maintained.
Implications and immediate consequences:
- The accused's acquittal stands because the prosecution failed to prove beyond reasonable doubt that the seized bottles contained liquor as defined by the Act.
- The Court signalled that, where available, the prosecution should obtain chemical analysis and the public analyst's certificate to establish the alcoholic content of seized substances rather than rely solely on the smell detected by officers with no particular expertise.
- The Court contrasted prior decisions where experienced excise officers' tasting and smelling (with explanation of the basis for their opinions) were accepted; the present decision indicates that similar reliance is unsafe when the witnesses lack relevant expertise or do not provide the basis for their opinion.
The decision does not convict the accused and sets out procedural guidance (as reflected in the opinion) emphasizing the need for scientific analysis/certificates in future prosecutions under the Prohibition Act where the alcoholic nature of seized material is in issue.
1. This is an appeal filed by the state against the judgment of the sub magistrate, Tellichery acquitting the accused who was tried for an offence under s. 8 (1) (a) of the kerala prohibition act (shortly stated the act). On 23 - 1 - 64 at about 1. 30 p. M. Pws. 1 and 2, Two police constables attached to the tellichery police station who were on patrol duty were passing along the tellichery - coorg trunk road. They found the accused coming in the opposite direction. When the accused saw the police he took to his heels, But they gave chase and apprehended him and seized from him three bottles of arrack m. O. 1 series. M. O. 2 is a rope with which the accused had fastened the bottles around his waist. Pws. 3 and 4, Two jutka drivers, In front of whose jutkashed the accused was arrested and searched, Witnessed the seizure of the bottles and they have attested the mahazar ext. P - 2 prepared at the place. Learned magistrate disbelieved the prosecution witnesses and acquitted the accused. Whatever might be said about the evidence of pws. 3 and 4, There was absolutely nothing in the evidence of pws. 1 and 2 to throw any the slightest doubt on the truth of their testimony. Learned magistrate has referred to some trifling discrepancies whether the accused was walking along the middle of the road or the side of the road or where exactly the accused was caught by each of the police constables when they stopped him. Such verbal contradictions do not materially affect the case at all and will not afford a sufficient basis for doubting their testimony. They had no motive whatsoever to get up a false case against the accused. Learned counsel for the accused fairly conceded that he is unable to subscribe to the views of the learned magistrate and admitted that on their evidence the fact of seizure cannot be doubted.
2. Learned counsel, However, Argued that there is no evidence in this case that what the bottle contained was 'liquor'. S. 8 (1) (a) says:
"whoever, Imports, Exports, Transports or possesses liquor or any intoxicating drug. "
'liquor' is defined in s. 7 (8) as including toddy, Spirits of wine, Methylated spirits, Spirits, Wine, Beer and all liquid consisting of or containing alcohol.
so proof that what the bottles contained was liquor is an essential ingredient in proof of the offence. It is admitted that the sample was not sent to the chemical analyst and, Therefore, There is no certificate from him. Pw. 1 merely stated that when they caught the accused and searched his person he found three bottles of arrack tucked up in his waist. Likewise, Pw. 2 the other constable also stated that three bottles of arrack were recovered, But he further deposed that they removed the cork and by smelling both they and the witnesses pws. 3 and 4 were satisfied that it was arrack. Pws. 3 and 4 have corroborated the evidence of pw. 2 regarding the smelling. Learned counsel would argue that mere smelling alone is not sufficient to prove that the liquid in the bottle was arrack containing alcohol.
3. Reference was made to the decision in bhimsinghji v. State of bombay (air. 1960 sc. 483). That was a case under the bombay prohibition act and discussing the question whether the contents of the bottle found in the attache case of the accused was an intoxicant within the meaning of the act, It was observed, All the evidence in the case to prove that the bottle in the attache case contained an intoxicant within the meaning of the act is the evidence that on uncorking, The bottle smelt of liquor. It was not sent for analysis and their lordships held that there was no clear proof that the liquid contained in the bottle found in the attache case was, In the first place, Liquor and, In the second place, If liquor that it was an intoxicant within the meaning of the act.
4. Again the case in behram khurshid pesikaka v. State of bombay (air. 1955 s. C. 123), The supreme court pointed out as follows;
"the bare circumstance that a citizen accused of an offence under s. 66 (b) is smelling of alcohol is compatible both with his innocence as well as his guilt. 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 is not discharged or shifted by merely proving a smell of alcohol."
5. Another decision to which our attention was drawn is the case in re madiga boosenna (air. 1964 a. P. 429), Where also the smell of liquor was considered not sufficient to prove the offence. There it was stated:
"when scientific methods are available to prove the fact of alcoholic content of an article, 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 the conviction of a person charged under the act, The smell of liquor is not sufficient to raise a presumption against a person charged for an offence under the act. The prosecution when they seize the arrack should get it examined by the chemical examiner. They cannot be allowed to adopt an easier course of examining its own officers to prove the contents of
the tins only by smell. If this is to be accepted as a general rule, It would be giving a very large latitude to the prohibition officers to prove alcoholic content of any prohibited article or drug under the act by mere smell".
6. Again in another case under the opium act in re ramapuram ayyanna (air. 1963 a. P. 334), It was held:
"for a conviction under s. 9 (a) opium act the prosecution must prove (1) that the accused was in possession of a substance; and (it) that that substance was opium falling within one or other of the categories included in the definition of opium in the act. In all such cases therefore the substance in question must be analysed by an expert competent to determine the composition of the vegetable matter like opium, And his opinion must be available to the court for its consideration before a conclusion could be reached as to whether the substance in question is opium or not. This is important because the offence does not involve any mens rea as mere possession is declared on offence."
7. Learned state prosecutor brought to our notice two decisions of this court in state v. Narayanan (1962 klt. 31) and state v. Bhavani (1963 klt. 549) - to which one of us was a party.
in 1962 klt 31 (cited supra) the accused was found in possession of 7 measures of toddy (the quantity being in excess of the permitted quantity) and 48 oz., Of illicit arrack. The learned magistrate acquitted the accused on the ground that there was no reliable evidence that what was recovered was illicit arrack and toddy as they were not sent for chemical analysis. In appeal by the state, This court took the view that excise officers, Particularly with long experience in the department, Could be considered as experts on the question whether a certain liquid is 'liquor'. The witnesses in the case had not only smelt the liquid, But had tasted it and it was held that their expert opinion could safely be relied upon. Even in that case it was emphasised that the officers should furnish the data on which their opinion is based and that their bald statements that the bottle contained illicit liquor were not sufficient.
in the other case in 1963 klt. 549, Pw. 1 an excise guard, Who had put in 20 years of service in the department who was working in the prohibition area for the past 10 years and who had experience of a large number of prohibition cases seized from the accused seven edangazhis of fermented wash fit for illicit distillation. Pw. 1 had deposed that he had tasted the liquid and found that it had the taste of arrack and having smelt it found strong smell of liquor and he was satisfied that it was koda, A fermented liquid made out of the bark of karinja, Jaggery and water for distilling arrack. The evidence of the witness was thought sufficient and the order of acquittal was set aside.
8. Here in this case it was only two police constables with practically no experience in the detection of prohibition "cases who were examined and they baldly stated that the liquid was arrack. Pw. 2, No doubt, Stated that himself and the other witnesses smelt it, But pw. 1 did not even say this. Unlike the cases referred to, None of the witnesses say that they had tasted the liquid and are certain that it is arrack. However, In view of the observations of the supreme court in the cases referred to, We are tempted to agree with the submission made by the learned counsel for the accused that in the absence of a report from the public analyst, It would not be safe to rely on the smell alone in finding that the liquid contained in the bottle was liquor within the meaning of the act. It may be that sending these articles to the public analyst in all these prohibition cases and getting the certificate may entail a certain amount of difficulty and probably delay, But that cannot be helped. It is a salutory principle of law that always the best evidence should be produced to prove a fact, Even though any inferior kind of evidence should not be excluded from consideration under the rule of best evidence. The government may make arrangements for appointment of a public analyst for the prohibition cases alone, If need be, And instructions may be issued that here afterwards certificates must be obtained before prosecutions are launched.
for all these reasons the guilt of the accused has not been established beyond reasonable doubt. The appeal filed by the state is dismissed.
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