Order The petitioner in each of these cases was convicted by the lower Court for consumption of prohibited liquor under section 4(1)(j) of the Madras Prohibition Act and each sentenced to pay a fine of Rs. 50, or to suffer rigorous imprisonment for one month in default. According to the prosecution, in the course of a police raid in a village on the outskirts of the Madras City, these petit oners and some others were arrested in batches and brought to the City with sonti soru (fermented rice) in their possession. They were also found to have consumed liquor. The case of possession of fermented rice was proceeded with but the petit Loners are said to have been acquitted. In the present case, the arrested persons were taken to a Doctor in the Royapettah Hospital, who, after examining them in the early hours of the morning, gave a certificate that they were smelling of alcohol and bore also symptoms of having consumed alcohol. The certificate also mentions the fact that they appeared to have consumed only liquor without indicating whether the liquor was of the prohibited variety or not. In the evidence-in-chief, the Doctor stated that the petitioners bore symptoms of having consumed alcohol. The petitioners’ Counsel elicited the following particulars from the Doctor in cross-examination: “I asked the accused Sarayam sapittaya (Did you consume arracke). The accused answered ‘ sapitten’ (I did consume).” The Inspector of Police who arrested these petitioners has given evidence that the petitioners smelt of liquor, but his evidence does not provide any clue as to whether the liquor consumed was of the prohibited variety or not. In the above circumstances the lower Court had to rely upon the admission of the petitioners made to the Doctor as elicited from him during his cross-examination, for the purpose of holding that the liquor which the petitioners had consumed was of the prohibited variety. Learned Counsel appearing for the petitioners, urged that the prosecution itself has failed to establish that the nature of the alcohol consumed by the petitioners was of the prohibited variety and he refers to the decision of Somasundaram, J., in Ratnam, In re1. Learned Counsel appearing for the petitioners, urged that the prosecution itself has failed to establish that the nature of the alcohol consumed by the petitioners was of the prohibited variety and he refers to the decision of Somasundaram, J., in Ratnam, In re1. He also referred to a decision of the Kerala High Court in Baghavan v. State of Kerala2where it has been held that a confession made by a person while he is in the custody of a Police Officer, unless it be made in the immediate presence of a Magistrate, shall not be proved against him. The learned Counsel points out that the petitioners were examined by the Doctor on a requisition from the Police and were actually brought to the Doctor by the Police; therefore, they must be presumed to have been in Police custody at the time the alleged confession was made, and therefore, that confession could not be acted upon. I agree with the last mentioned contention. Further, the Doctor in his examination-in-chief as well as in his medical certificate has not referred to the alleged confession made to him by the petitioners, and if the learned Counsel for the petitioners in the lower Court, while cross-examining the Doctor, had not put the question extracted above, there would have been no evidence about the alleged confession and no necessity to press the present argument. Apart from this, the objection as to the admissibility of the confessional statement by the petitioners to the Doctor in view of the provisions of section 26 of the Evidence Act holds good. The learned Additional Public Prosecutor, appearing for the State, urged that the circumstance that the petitioners were arrested at night at a place where some drama was going on, and that they were all found to be inebriated should be taken into account for deducing the inference that what caused their condition was consumption of prohibited liquor. It may not be proper to draw such an inference automatically, without specific evidence directed to show that the liquor consumed was a prohibited one. The circumstance adverted to by the Public Prosecutor may throw a great deal of suspicion against the petitioners that they might have consumed prohibited liquor. But that cannot take the place of the requirements of formal proof. The circumstance adverted to by the Public Prosecutor may throw a great deal of suspicion against the petitioners that they might have consumed prohibited liquor. But that cannot take the place of the requirements of formal proof. The view of Somasundaram, J., in Ratnam, In re1 has been followed in another decision of this Court by Anantanarayanan, J., reported in Periasami Gounder, In re.3 holding that it is the duty of the prosecution to prove that prohibited alcohol had been consumed by the accused persons and that the duty does not cease by merely proving that certain symptoms which could be attributed to consumption of alcohol were present in the person of the offenders. I therefore allow these Revision Petitions, set aside their convictions and sentences and acquit them. I direct that the fine amounts paid by them will be refunded. K.S.-----Petitions allowed.