Vijayan v. The State

BAIL SLIPThe Appellant/Accused namely Vijayan S/o.Avinashi was directedto be release on Bail in and by the order of this Court dated15.7.2002 and made in Crl.M.P.No.6468/02 in Crl.Appeal No.1028 of2002.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.06.2009C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.No.1028 of 2002Vijayan...Appellant/AccusedVs.The StateRep. by: The Inspector of Police,Avinashi P.E.W.Coimbatore DistrictCr.No.2530/2000...Respondent/ComplainantThis Criminal Appeal has been filed under Section 374(2) ofCriminal Procedure Code as against conviction and sentence imposedin S.C.No.94/2002 dated 04.07.2002 by the learned AdditionalDistrict Sessions Judge (Fast Track Court No.5), Tiruppur and toset aside the same.For Appellant: Mr.C.RamkumarFor Respondents: Mr.J.C.Durairaj, Govt. Advocate (Crl. Side)J U D G M E N TThe sole appellant, who stood charged for offences punishableunder Sections 4(1)(a) and 4(1)(i) of the Tamil Nadu ProhibitionAct and an offence punishable under Section 4(1-A) of Tamil NaduProhibition Act and convicted for offences punishable under Section4(1)(aa) read with Section 4(1)(b) and Section 4(1)(i) read withSection 4(1)(c), with simple imprisonment for a period of sixmonths and a fine of Rs.2,000/- with a default sentence of onemonth simple imprisonment in case of default in payment for theoffence under Section 4(1)(aa) read with Section 4(1)(b) and Simpleimprisonment for a period of two months and a fine of Rs.1,000/-with a default sentence of one week simple imprisonment in case ofdefault in payment for the offence punishable under Section 4(1)(i)read with Section 4(1)(c) of Tamil Nadu Prohibition Act andacquitted of the offence punishable under Section 4(1-A) of Tamil https://hcservices.ecourts.gov.in/hcservices/ Nadu Prohibition Act, has brought-forth this appeal under Section374 Cr.P.C. against the above said conviction and sentence.2. The facts leading to the filing of the present criminalappeal, in brief, as follows:-In a case registered as Cr.No.2530/2000 on the file of PEW,Avinashi Unit, Avinashi, one Thiru.N.Sampathkumar, Inspector ofPolice of the said PEW Unit submitted a final report aftercompletion of investigation on 28.03.2001 alleging that theappellant herein/accused had committed the following offences: i)an offence punishable under Section 4(1)(i) of Tamil NaduProhibition Act; ii) an offence punishable under Section 4(1)(a) ofTamil Nadu Prohibition Act; and iii) an offence punishable underSection 4(1-A) of Tamil Nadu Prohibition Act. The same was takenon file by the learned Judicial Magistrate, Avinashi (in-charge) asPRC No.35/2001. After furnishing the copies of the records reliedon by the prosecution under Section 207 IPC, the learned JudicialMagistrate committed the said case for trial under Section 209(a)to the Principal Sessions Judge, Coimbatore Sessions Division,Coimbatore as one of the offences, namely an offence punishableunder Section 4(1-A) of the Tamil Nadu Prohibition Act wasexclusively triable by a court of session. The learned PrincipalSessions Judge, Coimbatore Sessions Deivision, took it on file asS.C.No.94/2002 and made it over to the Assistant Sessions Judge(Sub Judge, Tiruppur) for disposal according to law. Subsequently,after constitution of Fast Track courts in the State of Tamil Naduand one at Tiruppur, the case was transferred to the file of theAdditional District and Sessions Judge (Fast Track Court No.5),Coimbatore Sessions Division, Tiruppur by the order of the learnedPrincipal Sessions Judge, Coimbatore dated 30.04.2002 made in hisproceedings No.673/2001. After the case was thus transferred tothe file of the Additional District and Sessions Judge (Fast TrackCourt No.5), Coimbatore Sessions Division at Tiruppur, the saidtrial court framed charges:-a) for an offence punishable under Sections 4(1)(a) and 4(1)(i) of Tamil Nadu prohibition Act;Andb) for an offence punishable under Section 4(1-A) of TamilNadu Prohibition Act.The appellant herein/accused pleaded not guilty. As many asfive witnesses were examined as P.Ws.1 to 5, eight documents weremarked as Exs.P1 to P8 and six material objects were produced asM.Os.1 to 6 on the side of the prosecution in order to substantiatethe charges framed against the appellant herein/accused. 3. After completion of recording the evidence on the side ofthe prosecution, the appellant herein/accused was questioned underSection 313(1)(b) of Cr.P.C regarding the incriminating materialsfound in the evidence adduced on the side of the prosecution. He https://hcservices.ecourts.gov.in/hcservices/ denied them as false and once again reiterated that he wasinnocent. No witness was examined and no document was marked on theside of the appellant herein/accused. 4. The learned trial judge heard the arguments advanced oneither side, considered the evidence brought before it in the lightof the said arguments and upon such consideration, recorded afinding that the prosecution had not proved the second charge,namely the charge for an offence punishable under Section 4(1-A) ofTamil Nadu Prohibition Act. However, it came to a conclusion thatcharge no.1, namely the charge for offences punishable underSection 4(1)(a) and 4(1)(i) stood proved beyond reasonable doubt.But, at the same time, the learned Trial Judge held that the proofof the said charge would invite separate punishment under Sections4(1)(b) and 4(1)(c) of the Prohibition Act. The court belowrecorded a conviction for offences punishable under Sections 4(1)(a), 4(1)(aa) and 4(1)(i). After examining the appellantherein/accused under Section 235(2) of Cr.P.C, though the appellantherein/accused was convicted for offences punishable under Sections4(1)(a), 4(1)(aa) and 4(1)(i) of the Tamil Nadu Prohibition Act,the court below imposed a sentence of six months simpleimprisonment and a fine of Rs.2,000/- along with a default sentenceof one month simple imprisonment for the offence punishable underSection 4(1)(b) and two months simple imprisonment and a fine ofRs.1,000/- along with a default sentence of one week simpleimprisonment under Section 4(1)(c) of the Tamil Nadu ProhibitionAct, as indicated supra. 5. As against the said judgment of conviction and order ofpunishment, the appellant herein/accused has come forward with thepresent appeal on various grounds set out in the appeal petition.6. Advancing arguments on behalf of the appellant,Mr.C.Ramkumar, learned counsel submitted that the judgment of thecourt below convicting the appellant herein/accused for the abovesaid offences was against law, weight of evidence and probabilitiesof the case; that the court below failed to take note of the factthat the very document setting the law in motion, namely FIR wasnot proved by examining the author of the complaint; that the courtbelow failed to note that there were material contradictions in theevidence adduced on the side of the prosecution, which wouldimprobablise the case of the prosecution or at least give rise to areasonable doubt regarding the prosecution version; that the courtbelow simply brushed aside the contention of the appellantherein/accused that the charge as framed against the appeal couldnot be maintained; that the court below failed to note that thecase was one foisted for the purpose of securing an order ofdetention under Act 14 of 1982 and that the court below createdutter confusion which would be apparent from the variation from theoffence with which the appellant stood charged and the penalprovision under which he was punished by the court below. https://hcservices.ecourts.gov.in/hcservices/

7. It is the further contention of the learned counsel for theappellant that the court below, having come to the conclusion thatthe case of the prosecution as if the author of the complaint wasaffected after consuming the arrack purchased from the appellantherein/accused, had not been proved and that hence the charge madeagainst the appellant herein/accused for an offence of selling orpossessing ID arrack mixed with a poisonous substance punishableunder Section 4(1-A) of the Tamil Nadu Prohibition Act had not beenproved, should have also come to the conclusion that the entireprosecution story built up on the said complaint based on which thecase was registered should also be disbelieved; that the manycontradictions and improbabilities found in the prosecution storyhad not been properly appreciated by the court below and that hadthey been properly adverted to, the court below would have given aclean chit to the appellant herein/accused by acquitting him of allthe offences with which he stood charged. The learned counsel forthe appellant also pointed out the fact that the prosecution failedto examine not only the author of the complaint but also theInvestigating Officer, who completed the investigation andsubmitted a charge sheet and that the same would give rise to areasonable suspicion regarding the prosecution story.8. On the other hand, Mr.J.C.Durairaj, the learned GovernmentAdvocate (Crl. Side), representing the respondent police, submittedthat sufficient evidence had been adduced on the side of theprosecution to show that the appellant herein/accused was foundpossessing 64 litres of ID arrack and that the samples drawn fromthe same were proved to contain atropine, a poisonous substance.It is the contention of the learned Government Advocate (Crl.Side)that the arrest of the accused, seizure of the contraband, drawingof samples from the contraband, seizure of the equipment used bythe appellant herein and the money realised by him by selling thecontraband and also the destroyal of the contraband after drawingsamples, were proved beyond reasonable doubt by examining policeofficers who conducted the raid and one of the witnesses for theoccurrence; that the fact that the ID arrack was recovered from thepossession of the appellant herein/accused did contain atropine, apoisonous substance was also proved beyond reasonable doubt by thereport and testimony of the Chemical Analyst and that hence therewas nothing wrong in the trial court convicting the accused andsentencing him as indicated supra. 9. This court paid it anxious considerations to thesubmissions made by the learned counsel for the appellant and alsoby the learned Government Advocate (Crl.Side) representing therespondent police. The judgment fo the court below, appealpetition and other materials available on record were also proved.10. It is not a case wherein the police officers of theProhibition Wing went on for a raid before ever registering a caseand during such raid, came across the appellant herein/accusedselling ID arrack. On the other hand, the specific case of the https://hcservices.ecourts.gov.in/hcservices/ prosecution is that before ever the police officers went to theplace of occurrence to arrest the accused and recover thecontraband from him, they got concrete information in the form ofEx.P4 by one Subramani. Only based on the said complaint ofSubramani, Ex.P5-First Information Report was recorded and the casewas registered. P.W.2, the then Sub-Inspector of Police attachedto PEW Wing, Avinashi Unit, is projected to be the person whoregistered the case on receipt of Ex.P4 complaint. But he did notmake any investigation based on the FIR registered by him. On theother hand, in the FIR P.W.5 - Thiru.Maraimalai, the thenInspector of Police, PEW Wing, Avinashi has been referred to as thepolice officer, who would conduct investigation. 11. According to the prosecution case, it was P.W.5, who wentto the place of occurrence along with P.W.1 - Murugesan and oneTamizh Murugan (not examined as a witness) to arrest the accusedand recover the contraband from him. In the endorsement made bythe Sub-Inspector of police on Ex.P4-complaint for the registrationof the case, the time of receipt of the complaint and time at whichthe case was registered has not been noted. However, in Ex.P5-First Information Report prepared in the printed format, the saidinformation was stated to be received at 12.30 p.m on 01.11.2000.But the said complaint was received in the court of the JudicialMagistrate only at 9.00 p.m on the said date. There is nothing inEx.P4 or P5 to show that the de-facto complainant was referred tothe hospital either for medical examination or for treatment.Neither P.W.2 nor P.W.5 - the first Investigating Officer hasstated that he was referred to the hospital for treatment/medicalexamination. If at all it is true that the said de-factocomplainant gave a complaint to the effect that his health wasaffected after consuming the liquor supplied to him by theappellant herein/accused and that he suspected presence ofpoisonous substance in the said liquor, the police officer whoreceived the complaint and registered the case would not haveomitted to send him to the hospital for treatment/medicalexamination. Apart from the same, the said de-facto complainanthas not been examined as a witness on the side of the prosecution.No attempt was made on the side of the prosecution to examine himas a witness even though he was cited as witness No.1 in the Memoof Evidence annexed to the Final Report submitted by theInvestigating Officer. No reason by way of explanation for non-examination of the de-facto complainant is forthcoming from theprosecution. Therefore, the very foundation of the case, namelyEx.P4-complaint and Ex.P5-First Information Report based on whichthe case of the prosecution against the appellant herein/accusedhas been built-up is shaken, as rightly pointed out by the learnedcounsel for the appellant.12. It is the case of the prosecution that one of the samplesdrawn from the contraband seized from the appellant herein/accusedin the scene of occurrence was sent to the Forensic Laboratory andthe Chemical Analyst, on examination of the sample, has given a https://hcservices.ecourts.gov.in/hcservices/ report under Ex.P6 opining that the same was arrack and itcontained atropine at 8.6 mg per 100 ml. P.W.3-Dr.Narayanan whowas the Assistant Director of Regional Forensic Lab, Coimbatoreduring the relevant period, is said to have examined the sample andsubmitted his Chemical Analysis Report under Ex.P6. From theevidence of P.W.3 and his report Ex.P6, it is quite obvious thatthe sample sent to the Forensic Lab through the Judicial Magistratewas found to contain arrack mixed with atropine at 8.6 mg per 100ml of arrack. P.W.4-Dr.Edwin Joe has been examined as an expertwitness to prove the consequences of consuming arrack mixed withatropine. When he was asked to give opinion as to what wouldhappen if a person consumes arrack mixed with atropine at the ratio8.6 mg pr 100 ml of arracks, he gave his opinion under Ex.P7stating that depending upon the physique of the person, if atropinemeasuring 30 mg to 150 mg got mixed in the blood, it would prove tobe dangerous to life. In the case on hand, according to Ex.P4 –complaint the de-facto complainant Subramani, bought a glass fullof arrack and consumed it. There is no evidence to show what wasthe capacity of the glass tumbler. The normal size of the glasswill have the capacity of 150 to 200 ml. If that is taken intoaccount, at the maximum of 17.2 mg of atropine alone would havebeen consumed along with the arrack by the de-facto complainant.As per the evidence of P.W.4, the same could not have resulted indanger to the life of the person who consumed it. 13. However, it is unnecessary to go into such question inthis case, because the trial court itself has come to theconclusion that the prosecution case regarding the charge underSection 4(1-A) was not proved beyond reasonable doubt. The learnedtrial judge pointing out the fact that the de-facto complainant wasnot examined on the side of the prosecution and no evidence wasadduced to show that his health was affected and he was giventreatment for the same, arrived at a conclusion that, that part ofthe prosecution was not proved beyond reasonable doubt and based onsuch finding the trial court has gone to the extent of acquittingthe appellant herein/accused in respect of the charge for anoffence punishable under Section 4(1-A) of Tamil Nadu ProhibitionAct. As against the said finding holding the appellantherein/accused not guilty of the offence punishable under Section 4(1-A), no challenge has been made by the State or any other personeither by way of an appeal or revision. Therefore, the finding ofthe court below that the charge under Section 4(1-A) of the TamilNadu Prohibition Act against the appellant herein/accused was notproved beyond reasonable doubt and that the appellantherein/accused was not guilty of the offence, has become final.14. In the previous paragraph, we have seen that the case ofthe prosecution as if the de-facto complainant-Subramani gave acomplaint to the police expressing his belief that the arrack soldby the appellant herein/accused did contain a poisonous substance,could not be probable; that based on the non-examination of the de-facto complainant the trial court itself came to the conclusion https://hcservices.ecourts.gov.in/hcservices/ that the charge under Section 4(1-A) of the Prohibition Act againstthe appellant herein/accused was not proved beyond reasonable doubtand that the appellant herein/accused was not guilty of the saidoffence and that the same has become final as no appeal or revisionhas been filed challenging the same. Now, in the light of the saidfinding, we have to consider whether the conviction of theappellant herein/accused for the other offences can be sustained.Only two witnesses have been examined on the side of prosecution toprove the prosecution case regarding the alleged arrest, recoveryof contraband, drawal of sample, destroyal of the contraband afterdrawing the samples and recovery of the other articles marked asM.O.2 to M.O.6. The seizure mahazar has been marked as Ex.P1,whereas the destroyal mahazar has been marked as Ex.P2. Ex.P3 andP8 are Observation Mahazar and rough sketch showing the salientfeatures of the place of occurrence. It must be noticed that outof the two independent witnesses in whose presence allegedly theaccused was arrested, contraband was seized and other articles wererecovered and destroyal mahazar was prepared, only one witness wasexamined as P.W.1. The other witness Tamizh Murugan has not beenexamined. No reason has been offered as to why he was not examinedas a witness. 15. In Ex.P4-complaint it has been stated that the de-factocomplainant Subramani bought one glass full of arrack for a sum ofRs.10/- in Nambipalayam Harijan Colony where the appellantherein/accused was selling arrack. Though it has been stated inthe complaint that the accused was selling arrack in NambipalayamHarijan Colony, particular place in that Harijan Colony has notbeen mentioned in the complaint. On the other hand, in the lastsentence of the complaint it has been stated that the de-factocomplainant would show the place of occurrence and identify theappellant herein/accused, if the police would accompany him.However, as per the evidence adduced on the side of theprosecution, the de-facto complainant was not taken to the place ofoccurrence when the police party went there to arrest the accused.On the other hand P.W.1 and another by name Tamizh Murugan weretaken by the police party to the place of occurrence to bewitnesses for the arrest and recovery. If it was so, it is amystery as to how the police party were able to pin-point the placeof occurrence and go straight away to the place of occurrence. Theplace of occurrence is said to be a pond near Nambipalayam Harijancolony. This pond was not referred to in Ex.P4-complaint. As perEx.P8-Rough sketch, the house of the appellant herein/accused wason the northern side of the road whereas the pond was on thesouthern side of the main road. The distance between the place ofoccurrence and the house of the appellant herein/accused is shownto be 250 feet.16. In the cross-examination, P.W.1 stated that his statementwas recorded by the police at 1.30 p.m on the date of occurrenceand thereafter he was not examined by the police and he did notmeet any police. However, further down in the course of cross- https://hcservices.ecourts.gov.in/hcservices/ examination, he would state that the police invited him to be awitness for the occurrence at about 1.15 p.m, he reached the placeof occurrence along with police at about 1.30 p.m and the policearrested the appellant herein/accused at 1.30 p.m itself. It washis evidence that within half an hour, all the Mahazars wereprepared and the material objects were recovered. According to hisevidence the police completed arrest, recovery and investigation atthe place of occurrence by 2.00 p.m. However, the evidence ofP.W.5, the first Investigating Officer is quite contra to theevidence of P.W.1. According to his testimony, he reached theplace of occurrence at 1.00 p.m on the date of occurrence, namely01.11.2000. According to his evidence, the police party was therein the scene of occurrence till 4.00 p.m. Even though Rs.90/- wasallegedly recovered from the appellant/accused as the moneyrealised by him in selling ID arrack, the numbers of the currencynotes were not noted in the seizure mahazar, marked as Ex.P1. Whenthe numbers of the currency notes were not noted in the mahazar, itis quite surprising as to how the prosecution witnesses, namelyP.W.1 and 5 were able to identify M.O.5 to be the currency notesrecovered from the appellant herein/accused. 17. P.W.1 would assert in his evidence that he signed twodocuments alone in the place of occurrence. But it transpires hehas signed a third document also. The said third document isnothing but the Observation Mahazar, marked as Ex.P3. Theassertion of P.W.1 that he did not sign more than two documents inthe place of occurrence and a subsequent admission that hissignature was also found in Ex.P3, would make probable thecontention of the appellant herein/accused that the signatures ofP.W.1 should have been obtained in the police station and that iswhy such a discrepancy is found in the evidence of P.W.1. Thatapart, the sequence of incident during the course of occurrence asprojected by P.Ws.1 and 5, the only witnesses who would give directevidence regarding the occurrence, will also improbablise theprosecution version. P.W.4 is the police officer who is said tohave arrested the accused, recovered the contraband, drawn samplesfrom it and destroyed the balance contraband. He gives a cogentaccount of the sequence of incidents. According to his testimony,the accused was arrested at 1.30 p.m, then 60 litres of arrackfound in the lorry tube marked as M.O.2, 4 litres of arrack foundin the plastic can marked as M.O.3, green colour plastic mug markedas M.O.4, glass tumbler marked as M.O.6 and the money marked asM.O.5 were recovered under Ex.P1-Seizure Mahazar at 2.00 p.m andthere after two samples marked as M.O.1 were drawn from thecontraband and the balance contraband was destroyed in the place ofoccurrence. He has simply stated that he destroyed the balancecontraband after preparing the destroyal mahazar marked as Ex.P2.How was the balance contraband destroyed was not elaborated byP.W.5. On the other hand P.W.1 would state that the police letbalance contraband flow into the ground, set fire to it and thusdestroyed it. The statement of P.W.1 in vernacular language is asfollows: https://hcservices.ecourts.gov.in/hcservices/ "fPnH Cw;wp jP itj;J mHpj;Jtpl;ldh;"Ex.P2-destroyal mahazar contains a recital that the balancecontraband was destroyed by pouring the same on the ground. Thesame in vernacular language is as below:"rk;gt ,lj;jpy; bfhl;o mHpf;fg;gl;lJ"There is nothing to indicate that it was destroyed by setting it onfire. In addition to that P.W.5 has erroneously referred to thedestroyal mahazar as Ex.P8.18. Ex.P1-Seizure mahazar is said to have been prepared at2.00 p.m on 01.11.2000 and Ex.P2-Destroyal mahazar is said to havebeen prepared at 2.30 p.m. Ex.P3-Observation mahazar is said tohave been prepared at 1.45 p.m. In this regard, the evidence ofP.W.1 seems to be somewhat contradictory. According to him, soonafter the police party arrived at the place of occurrence, theyarrested the appellant herein/accused and then they prepared thedestroyal mahazar. He did not state when the seizure mahazar wasprepared. The evidence of P.W.1 and P.W.5 are to the effect thatno sample was drawn from the arrack contained in M.O.2-lorry tubeand that both the samples were drawn from the liquid found inM.O.3-plastic can. When liquid was allegedly found contained inmore than one container and the liquid found in all the containerswere seized, the police are expected to take samples of the liquidfound in all the containers. In this case, samples according tothe prosecution case and Ex.P2-destroyal mahazar, were drawn fromthe liquid contained in M.O.3-plastic can alone and no sample wasdrawn from liquid contained in M.O.2-lorry tube. The liquidcontained in M.O.2-lorry tube was allegedly destroyed withoutdrawing any sample from it. Therefore, this court has to come tothe conclusion that the liquid allegedly found in M.O.2-lorry tubehas not been proved either to be ID arrack or to contain anypoisonous substance like atropine. Therefore, this court has tocome to a conclusion that the prosecution theory that the appellantherein/accused was found possessing 64 litres of ID arrack has notbeen proved by sufficient evidence beyond reasonable doubt. Thefinding of the trial court that the accused was proved to have inhis possession more than 50 litres of ID arrack and hence he wasguilty of an offence punishable under Section 4(1)(aa) has to beheld defective and infirm liable to be interfered with and reversedby this court in this appeal. 19. The discussions made above will go to show that theprosecution has failed to prove beyond reasonable doubt the chargeagainst the accused that he had committed an offence punishableunder Section 4(1)(aa) of Tamil Nadu Prohibition Act and that hencethe conviction recorded by the court below for the said offence isliable to be set aside as the same will not stand the scrutiny ofthis court in this appeal. https://hcservices.ecourts.gov.in/hcservices/

20. It has been held in the foregoing paragraph that thoughthe prosecution has brought-forth the story that 64 litres of IDarrack was recovered from the appellant herein/accused, theprosecution miserably failed to prove that the liquid allegedlycontained in the lorry tube marked as M.O.2 was ID arrack and thathence the charge under Section 4(1)(aa) of Tamil Nadu ProhibitionAct was not proved beyond reasonable doubt. Therefore, the onlyone question that remains to be considered is whether the case ofthe prosecution that the police party seized 4 litres of ID arrackcontained in M.O.3-plastic can from the appellant herein/accusedhas been substantiated by the prosecution beyond reasonable doubt.The many improbabilities and contradictions found in the evidenceadduced on the side of the prosecution case have been pointed outin the foregoing discussions. The samples allegedly drawn from theliquid contained in M.O.3-plastic can, were found to be ID arrackmixed with atropine as per the evidence of P.W.3 and Ex.P6. If itis true that the samples were drawn from the liquid seized from theappellant herein/accused, then the natural consequence shall bethat the appellant herein/accused would be found guilty of anoffence punishable under Section 4(1-A) of the Tamil NaduProhibition Act also. As pointed out supra, the trial court itselffound him not guilty of the offence under Section 4(1-A). Thecourt below, disbelieving the case of the prosecution regarding theoffence under Section 4(1-A) of Tamil Nadu Prohibition Act hasacquitted the appellant herein/accused regarding the said offence.The said part of the judgment of the court below has not beenchallenged either by the State or by any other person by way of anappeal or revision. The case of the prosecution that 64 litres ofID arrack was recovered from the appellant herein/accused has beendisbelieved; the seizure of 4 litres of ID arrack from the can, thesamples drawn from which tasted positive for atropine was believed,then the trial court could have convicted him for the offence underSection 4(1-A) of Tamil Nadu Prohibition Act. When he was notfound guilty of the offence under Section 4(1-A), this courtwonders how he can be found guilty of possessing 4 litres of IDarrack and punished for an offence punishable either under Section4(1)(i) or 4(1)(a) of Tamil Nadu Prohibition Act. 21. The defects and improbabilities found in the prosecutioncase and the contradictions found in the evidence of prosecutionwitnesses in respect of other offences, namely offences punishableunder Sections 4(1-A) and 4(1)(aa) will also give rise to areasonable suspicion regarding the offence under Section 4(1)(i) or4(1)(a) of Tamil Nadu Prohibition Act. Admittedly, the presentcase happened to be the ground case based on which the appellantherein/accused was detained under Act 14 of 1982 which order cameto be revoked after 5½ months. The very fact that the alleged de-facto complainant was not examined and the Investigating Officerwho completed investigation and submitted the Final Report was alsonot examined coupled with the defects pointed supra, shall beenough to arrive at a conclusion that there are reasonable doubts https://hcservices.ecourts.gov.in/hcservices/ regarding the prosecution case in respect of the offence underSection 4(1)(i) or 4(1)(a) also. It should be worth mentioningthat the first Investigating Officer, namely P.W.5 before everreceiving the Chemical Analysis Report, chose to examine P.W.4 asan expert regarding the consequences of consuming arrack mixed withatropine. The same will exhibit the determination of P.W.5 toprosecute the appellant herein/accused for an offence punishableunder Section 4(1-A) also even before confirming the presence ofpoisonous substance in the contraband allegedly seized from theappellant herein/accused. The same shall be enough to create areasonable suspicion that the case itself should have been foistedwith the object of getting the appellant/accused detained under Act14 of 1982. The said suspicion gets strengthened by thediscrepancies found in the evidence of the prosecution witnesses,especially P.W.1 regarding the number of documents in which hesigned as a witness and the manner in which the contraband wasdestroyed after drawing samples. Above all, the prosecution caseitself has been founded on the alleged complaint-Ex.P4 given by oneSubramani. We have already seen that the said complaint was notproved beyond reasonable doubt. It has also been pointed out thatthe failure to examine him, the failure to send him to the hospitalfor examination/treatment and the failure to adduce evidenceregarding such medical examination/treatment will improbablise thecase of the prosecution that the accused was arrested pursuant tothe case registered based on the complaint of the said de-factocomplainant under Ex.P4. The very foundation of the prosecutioncase is shaky. On that ground also, this court has to necessarilycome to the conclusion that the offence allegedly committed by theappellant herein/accused punishable under Section 4(1)(i) or 4(1)(a) has not been proved beyond reasonable doubt and that theappellant herein/accused should be acquitted of the said chargealso giving the benefit of doubt. 22. Before parting with the case, this court wants to put onrecord the fact that the court below has completely forgotten thescope of charges framed against the accused while awardingpunishment. The court below, after holding that the appellantherein/accused was not guilty of the offence punishable underSection 4(1-A) of the Tamil Nadu prohibition Act, recorded afinding that the charge against him for the offences punishableunder Sections 4(1)(a) and 4(1)(i) were proved beyond reasonabledoubt as it is found in first part of paragraph 10 of thejudgement of the court below. However, in the latter part of theparagraph 10 and in paragraph 11 of the judgment, the court belowhas recorded a finding that the appellant herein/accused was guiltyof offences punishable under Section 4(1)(a), 4(1)(aa) and 4(1)(i)of the Tamil Nadu Prohibition Act. It is pertinent to note that nocharge was framed for an offence under Section 4(1)(aa). Thatbeing so no sentence could have been passed under Section 4(1)(b)of Tamil Nadu Prohibition Act. The procedure adopted by the courtbelow in this regard is erroneous warranting disapproval of thiscourt. https://hcservices.ecourts.gov.in/hcservices/

23. For all the reasons stated above, this court comes to theconclusion that the conviction of the appellant herein/accused bythe court below for offences punishable under Sections 4(1)(b) and4(1)(c) of Tamil Nadu Prohibition Act and the sentence awardedtherefor are infirm and defective warranting interference by thiscourt in this appeal and that the conviction recorded and thesentence awarded by the court below have to be set aside as theycannot be sustained in law.24. In the result the appeal succeeds and the appeal isallowed. The conviction of the appellant herein/accused for anoffence punishable under Sections 4(1)(b) and 4(1)(c) of Tamil NaduProhibition Act and the sentence imposed by the court below are setaside and the appellant herein/accused is acquitted of all theoffences with which he stood charged. Fine amount collected shallbe refunded to the appellant. Sd/Asst.Registrar/true copy/Sub Asst.Registrarasr/To1. The Additional District Sessions Judge (Fast Track Court No.5), Tiruppur.2.-Do-Through The Principal Sessions Judge, Coimbatore.3. The Inspector of Police, Avinashi P.E.W. Coimbatore District4. The Public Prosecutor High Court, Madras5.The Judicial Magistrate, Mettupalayam(Avinashi Incharge)6.The District Collector, Coimbatore.7.The Director General of Police, Madras.8.The Section Officer, Criminal Section, High Court, Madras. Crl.A.No.1028/2002ntk(co)pmk.8.7.2009.