STATE OF ANDHRA PRADESH versus MADIGA BOOSENA & ORS.

Citation: [1967] 3 S.C.R. 871 · Decided: 02-05-1967 · Supreme Court of India · Bench: M. HIDAYATULLAH · Disposal: Dismissed

Judgment (excerpt)

A 
STATE OF ANDHRA PRADESH 
v. 
MADIGA BOOSENA & ORS. 
May 2, 1967 
B 
[M. HIDAYATULLAH AND C. A. VAIDIALINGAM. JJ.J 
c 
D 
E 
F 
G 
H 
Andhra Pradesh (Andhra Area) Prohibition Act, 1937 (Act 10 of 
1937) S. 4(1) (a)-Seized commodity not chemically examined-Wit-
nesses' s111ell,, if conclusive proof-
The respondents were prosecuted under S. 4(l)(a) of the Andhra 
Pradesh (Andhra Area) Prohibition 
Act, on the allegation that they 
were found transporting arrack. The 
respondents denied· the offence 
and pleaded that a mere statement by the witneS'Ses that there was 
a 
strong smell of arrack, emanating from the tins, when they were pierced 
was not sufficient to establish that the tins contained 
arrack and that 
the samples of the commodity should have been sent for opinion of 
the Chemical Examiner. 
The trial and the appellate courts 
rejected 
the respondents'J.leas and convicted them but the High Court acquitted 
them. In appe , to this Court. 
HELD : The prosecution has not established that the respondents 
were guilty under s. 4(1) (a) of the Act. 
Merely 
trustin~ to the smelling sense of 
the Prohibition Of&ers, 
and basing a conviction, on an opinion expressed by those officers, could 
not justify the conviction of the respondents. Better proof, by a techni-
cal person, who had considered the matter from a scientific point of 
Yicw, was not only desirable, but even necessary, to establish that the 
article seized was one coming within the definition of 'liquor'. (874-E] 
Baidyanath Mishra v. The State of Orissa, Crl. Ap. No. 270/1964 
dtXided on 17-4-1967: distinguished. 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 
6 of 1965. 
Appeal by special leave from the judgment and order dated 
January 17, 1964 of the Andhra Pradesh High Court in Criminal 
Revision Case No. 215 of 1963. 
· 
P. Ram Reddy and K. layaram, for the appellant. 
The respondent did not appear. 
The Judgment of the Court was delivered by 
Vaidialingam, J. In this appeal, by special leave, on behalf of 
the S'.ate of Andhra Pradesh, the appellant herein, Mr. P. Rim 
Reddy, learned counsel, challen&es the order dated January 17. 
1?6.4, of the Andhra Pradesh Htgh Court, setting aside the con: 
v1ctlon of the re;pondents, for an offence under s. 4(1 )(a) of the 
Andhra Pradesh (Andhra Area) Prohibition Act 1937 (Act X 
of 1937), hereinafter called the Act. 
' 
L9Sup. Cl/67-12 
872 
SUPREME COURT REPORTS 
[1967] 3 S.C.R. 
According to the prosecution, the respondents were found 
transporting, in a bullock cart, on the early morning of June 1 O, 
1962, fifty gallons of arrack. It is the case of the prosecution 
that the.prohibition staff found, on the day in question, a bullock 
cart, dnven by the first respondent, in which the fifty gallons of 
arrack were found in 13 tins. Accordingly, they were prosecuted 
for an offence under s. 4(1)(a), of the Act. All the respondents 
subs'.antially denied, having committea the offence, with which 
they were charged. 
The prosecution let in the evidence of the Prohibition Sub-
Inspector, P.W.1, and another petty officer of the prohibition 
staff; P.W.4. The evidence of these two witnesses, was to the 
effect that when the bullock cart, in question, came near them .. 
there was a smell of arrack. 
In particular, P .W.4 has stated that 
the tins, which were in the bullock cart, were pierced with bayo-
net,. and when smelt, they gave a strong smell of arrack. To 
corroborate the evidence of these two officers, the other witnesses, 
P.Ws. 2 and 3, who were stated to have witnessed this occurrence, 
along with the prohibition party, were also examined. They 
stated that when the bullock cart came near them, they got a 
strong smell of arrack, and that the 12 tins were pierced with 
bayonet ends and their contents verified. 
Only some 
of the 
witnesses have been cross-examined, and the respondents, have 
suggested to them that during that hour of the night, it would not 
have been possible for them to identify the persons, who were 
stated to have been in the bullock cart. No doubt, no specific 
suggestion, that the commodity that was seized, is not one to 
which the Act applies, has been made. During the trial, however 
the question appears to have been raised, among other conten-
tions, that the prosecution has not established the necessary ingre-
dients for establishing that the respondents have committed the 
offence, under s. 4 ( 1) (a), of the Act. The trial Court, adverting 
to this aspect, has r

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