Judgment : The revision petitioners have been convicted of an offence punishable under section 4(1)(j) of the Tamil Nadu Prohibition Act, and sentenced to imprisonment till the rising of the Court and to pay a fine of Rs.150 by the learned Judicial Second Class Magistrate, Tiruchengode and in appeal the learned Chief Judicial Magistrate, Salem, confirmed the conviction and sentence passed against the accused-revision petitioners. 2. The facts are: On 30th October, 1977 at about 9-30 p.m. the revision-petitioners were found quarrelling at the junction of Sanarpalayam-Pallipalayam road. They were found to have consumed arrack. The revision-petitioners were charged for the offences under section 4(1)(j) of the Tamil Nadu Prohibition Act, and section 75 of the Madras City Police Act. Relying on the evidence of the Doctor, P.W. 3, the learned Magistrate convicted and sentenced them as stated above and in appeal as pointed out already, the conviction and sentence were confirmed. 3. The learned Counsel appearing for the revision petitioners on the authority in Shanmugam v. Statecontended, that a conviction cannot be based on the bare circumstance of smell alone and therefore, the conviction is bad and it should be set aside. My attention was invited to the evidence of the Doctor, P. W. 2, who has stated that on 13th October, 1977, he examined Rathinam, the first revision petitioner at about 10-20 p.m. and Arthanari, the second revision petitioner at about 10-30 p.m. on the same day, and found the following symptoms on them: “Eyes slightly congested; pupils normal; speech normal; gait normal; and breath smell of arrack”. He issued Exhibit P-l and Exhibit P-2, the certificates and he was of the opinion that both the revision petitioners have consumed arrack but were not under its influence. In cross-examination P.W.2 admitted that if a sleeping person is awakened at night his eyes may be slightly congested. He also admitted that old fermented sugarcane juice may emanate smell of arrack in breath after sometime of use. It should be noted that P.W.2 has not taken the urine or blood for the examination of alcoholic contents. In Shanmugam v. Stateto which reference had already been made, Somasundaram, J., observed thus: “The evidence of the doctor shows that even if old sugar juice was taken it may smell like I.D. arrack. It should be noted that P.W.2 has not taken the urine or blood for the examination of alcoholic contents. In Shanmugam v. Stateto which reference had already been made, Somasundaram, J., observed thus: “The evidence of the doctor shows that even if old sugar juice was taken it may smell like I.D. arrack. The other symptoms noted namely red eyes and talking at random are consistent with the conduct of a person who is rudely awakened from his sleep and questioned in the manner he has been done. It is the duty of the prosecution to prove that the smell can come only from I.D. arrack, if the inference is to be drawn about consuming liquor from the smell alone. This it has not done. The other symptoms also must be proved. to be due only to the effect of liquor. Such a proof is lacking”. Finally the learned Judge came to the conclusion that the prosecution has not made out a case beyond all doubt and set aside the conviction and sentence and acquitted the accused. 4. Per contra the learned Public Prosecutor brought to my notice a ruling by the same Judge in Public Prosecutor v. Gangadhara Shetty. That was a case where in addition to the smell of liquor there were other symptoms such as redness of eyes, pupils being dilated, incoherent speech and unsteady gait. It is under those circumstances, the learned Judge observed: “and if an inference could be drawn that the cumulative effect of all the symptoms is due to consumption of liquor the onus lies on the accused to show that he had consumed such other liquid or liquids which would produce the other symptoms in him”. Most unfortunately in this case is, we do not have the other symptoms such as redness of eyes, incoherent speech or dilation of the pupils. The evidence of the doctor, P.W.2, shows that if a person is woken up in his sleep his eyes might be slightly congested. The only symptom other than the smell of the arrack found by the doctor was the congestion of the eyes of the revision petitioners the cause of which can be attributed to the waking up of the revision petitioners at night. The doctor has also stated that fermented sugarcane juice if taken may emanate the smell of arrack in breath. The only symptom other than the smell of the arrack found by the doctor was the congestion of the eyes of the revision petitioners the cause of which can be attributed to the waking up of the revision petitioners at night. The doctor has also stated that fermented sugarcane juice if taken may emanate the smell of arrack in breath. I am, therefore, of the opinion that from the mere circumstance of smell alone, the inference that the accused has consumed arrack cannot be drawn. The other tests viz., the examination of blood and urine for the presence of the alcohol has not been done. This is eminently a fit case where the benefit of doubt has to be given to the accused. The revision is allowed and the conviction and sentence are set aside. The fine if paid will be refunded to the accused.