minal Appeal No 138 of 1970
From the judgment and order dated the 4th May 1970 of the Allahabad High Court at Allahabad in Criminal Revision No 1649 of 1968
K L Arora and M M Kshatriya for the appellant
O P Rana for the respondent
The Judgment of the Court was delivered by BEG J
This appeal comes up before us by a certificate of fitness of the case for appeal to this Court granted by the Allahabad High Court under Article 134 1  c of the Constitution
The appellant was convicted under Section 60 a of the UP Excise Act and sentenced to six months rigorous imprisonment and a fine of Rs 1000  and in default of payment of the fine to undergo imprisonment for a further period of two months
His conviction and sentence were confirmed by the Sessions  Judge as well as by the High Court of Allahabad
On 27 10 1967 at about 645 pm he was found by the raiding Excise staff in a room of a bungalow in Meerut apparently preparing something with the aid of materials found there which were seized
These were said to be 1
Five drums each containing about 20 liters liquor of OP strength the sample whereof was taken in five bottles from each tin
Three empty drums of five gallons capacity
Thirty empty bottles bearing labels
Labels
120 in number bearing the words Khody s Herecules 
Different types of capsules 142 in number
His plea was that he had no concern with the bungalow in question and that he was not present at the time when its search was taken
He said that the Excise Inspector came to the liquor shop of Gyan Chand Chander Mohan
situated in Sadar Bazar
Meerut where he was working as a salesman
According to him the Excise Inspector wanted to check the stock of spirit and demanded the register from him
As the register was locked in a drawer the Excise Inspector is alleged to 823 have abused the appellant and implicated him falsely for alleged possession of the objects mentioned above
It may be mentioned here that the search of bungalow No 243 Circular Road Meerut Cantonment from where the recovery was made was taken after the issue of a regular search warrant exhibit Ka 1 under Section 52 of the UP Excise Act 1910 by a First Class Magistrate on 26 10 1967
The very detailed recovery Memo Exhibit Ka 2 dated 27 10 1967 was signed by as many as six witnesses in addition to having been signed by the officer who conducted the search and by the appellant himself
In this Memo in the column for remarks the result of the test report of the liquor is given as follows Test report of the liquor
The contents of all the five paper torn of dirty white colour like paper torn characteristics smell of the paper torn Hydrometer test is as under paper torn Drum No 1 77 F x 132 509 OP Drum No 2 77 F x 134 507 OP Drum No 3 76 F x 138 506 OP Drum No 4 76 F x 142 502 OP Drum No 5 77 F x 136 505 OP Hence the contents of each drum are liquor of OP strength
Two questions have been raised in this case for our consideration Firstly whether the smelling test employed by the Excise Inspector together with other circumstances were enough to justify the conclusion that the liquid recovered was illicit liquor of OP strength  And secondly whether the Excise Inspector could be considered an expert whose opinion about the nature of the liquid found was opinion evidence admissible under Section 45 of the
Evidence Act  It will be seen from the statement of the appellant under Section 342 Criminal Procedure Code that he had professed ignorance about the nature of the liquid recovered from
the room of the house in which he was found
The false defence taken that he was not present at the house in question when it was searched could indicate that he wanted to keep his distance from the recoveries made as he was aware of their incriminating nature
Moreover the appellant who was an employee in a liquor shop could not be so ignorant about the nature of the liquid recovered as not to be able to raise the question before the Trial Court that the liquid under consideration was not liquor as defined by the Act
In the Trial Court he examined a number of witnesses to substantiate his plea that he was not present at the house from which the recovery was made but was taken from the shop in Sadar Bazar
And that was the only question of fact which seems to have been raised and considered in the Trial Court at considerable length
Before the Sessions Judge also the main question raised was whether the at was arrested from the shop in Sadar Bazar or from the Kothi at Cir 824 cular Road Meerut Cantt
The learned Counsel for the appellant had however at the end of his arguments also contended before the Sessions Judge that the liquid recovered had not been proved to be illicit liquor even if it was established that the recovery was from the possession of the appellant
He had relied on State of Andhra Pradesh vs Madiga Boosenna  Ors
1 The learned Sessions Judge had distinguished Boosenna s case supra on the ground that the Excise Inspector in the case before us who had the required technical knowledge and training behind him had tested the contents of the drums with the aid of litmus paper hydrometer and thermometer and not confined himself to smelling the contents of the drums
The question of the admissibility of the opinion of the Excise Inspector was however not raised before the Sessions Judge
It appears that both the questions formulated above were raised before the High Court when the appellant s revision application came up before it
The High Court had also distinguished Boosenna s case supra on the ground that there were sufficient number of surrounding circumstances to buttress the opinion evidence of the Excise Inspector in the case before us
It pointed out that this was not so in Boosenna s case supra
The High Court had also held that it appeared from the Excise Manuals and various rules framed by the UP Government which had been placed before it that the Excise Inspectors have to undergo rigorous training in all branches of knowledge involved in the performance of their duties including knowledge of the process of distillation and that the Excise Inspector C D Misra PW 1 was a senior man incharge of raids and detection of important cases so that his opinion evidence was admissible presumably as expert evidence and could be relied upon
In certifying the case under Article 1341 c of the Constitution the High Court had observed that it was desirable that this Court may decide the question whether despite the corroboration facts and circumstances which supported the smelling test employed by the Excise Inspector in the case before us the test to which liquor was to be subjected in such cases was not to be more scientific and accurate than the one actually employed by the Excise Inspector
Learned Counsel for the appellant had cited State vs Madhukar Gopinath Lalge2 where it was held in a prosecution under Bombay Prohibition Act that although the circumstances in which an accused was discovered carrying liquid in rubber tubes may raise grave suspicion against him yet the Court would not be content with anything less than a chemical or Ido form test to determine the composition of the liquid
It was held that the Sykes  or the Hydrometer test could not help in determining whether the liquid under consideration there really contained alcohol or not
It however also held that once it is known that the liquid contained alcohol the percentage of alcohol in it could be found out by employing the hydrometer test
In other words according to this decision the Hydrometer test would be enough if the liquid was known to contain alcohol because it would help to determine the strength of alcoholic contents
1  2 ILR 1965 Bombay 257
825 Another case cited was Ram Jus vs State 1 where a Division
Bench of the Allahabad High Court had held that evidence based on chemical analysis was essential in order to establish that a substance alleged to be Ganja recovered from an accused person was really Ganja
In that case reliance was placed upon the judgment of this Court in Boosenna s case supra from which the following passage was cited Except for a general statement contained in the evidence of the witnesses particularly PWs 1 and 4 that there was a strong smell of alcohol emanating from the tins which were pierced open there is no other satisfactory evidence to establish that the article is one coming within the definition of the expression liquor 
Merely trusting to the smelling sense of the prohibition officers and basing a conviction on an opinion expressed by those officers under the circumstances cannot justify the conviction of the respondents
In our opinion better proof by a technical person who has considered the matter from a scientific point of view is not only desirable but even necessary to establish that the article seized is one coming within the definition of liquor 
 We think that it is not desirable to lay down an inflexible rule on questions of fact even though their determination requires the adoption of scientific methods and tests
It is really for the Court of fact to decide whether upon a consideration of the totality of the facts in a case
it has been satisfactorily established that the objects recovered from the possession of the accused included liquor of prohibited strength
We see no reason why an accused person in the position of the appellant who could be presumed to have enough knowledge about the composition and strength of the prohibited liquor could not raise this question in the Trial Court so that the prosecution may cure whatever weakness there might be in the evidence on that point
We do not think that he should be allowed to raise it at a stage when it may be difficult or impossible to adopt a conclusive test
Another question before us is whether the Excise Inspector whose evidence was under consideration had sufficient knowledge to be deemed to be an expert within the meaning of Section 45 of the Evidence Act so that the tests adopted by him together with all the attendant circumstances could establish beyond doubt that the appellant was in possession of illicit liquor
We think that these are also essentially questions of fact
If there is sufficient evidence led by the prosecution o establish its case it becomes the duty of the defence to rebut that evidence
In the case before us the appellant s Counsel cross examined Shri C D Misra PW 1 Excise Inspector at considerable length but the whole of this cross examination was directed at showing that the recoveries were not made from the possession of the appellant
No question was put to him in cross examination to suggest that the appellant questioned the composition or strength of the liquid recover 1 826 ed as alcohol of prohibited strength or the competence of the Excise Inspector to give his conclusion on the strength of tests adopted by him
Again no defence evidence was led to indicate that the liquid could be anything else
These considerations would be sufficient to dispose off the points raised on behalf of the appellant in the case before us
We may however observe that we agree with the High Court that the proposition contained in Boosenna s case supra must be confined to its own facts
We find that the Excise Inspector who had deposed at the very outset of his evidence that he had put in 21 years service as Excise Inspector and had tested lacs of samples of liquor and illicit liquor
As already pointed out the competence of C D Misra to test the composition and strength of the liquid under consideration was not questioned at all
We therefore think that this particular Excise Inspector could be treated as an expert within the meaning of Section 45 of the Evidence Act
The Excise Inspector had in addition to employing the smelling test used all the other tests he could reasonably adopt
If his competence to give his opinion or the sufficiency of the tests adopted by him had been questioned in the Trial Court the prosecution would have been in a position to lead more evidence on these questions
We also find that the objects recovered from the possession of the appellant almost proclaim the nature of his activity and of the liquid which could be in his possession
On the facts and circumstances of this case neither Boosenna s case nor any other case would we think help the appellant
Consequently we dismiss this appeal and affirm the conviction and sentence of the appellant
The appellant should surrender to his bail and serve out the sentence
PBR Appeal dismissed


Summary:
The appellant was found preparing illicit liquor when the raiding excise party searched the room in which he was present
The appellant pleaded that he had no concern with the bungalow searched and that he was not present when the search was taken and that he was falsely implicated in the case
All the materials found in the room were seized
The Excise Inspector had tested the contents of the drums with the aid of litmus paper hydrometer and thermometer and did not confine himself to smelling the contents of the drums
The appellant was convicted by the trial court under section 60a UP Excise Act 1910 for preparing illicit liquor and was sentenced to imprisonment and fine
His conviction and sentence were confirmed both by the sessions Judge and the High Court
The questions raised in this Court were i whether the smelling test employed by the Excise Inspector together with other circumstances were enough to justify the conclusion that the liquid recovered was illicit liquor of OP strength and ii whether the Excise Inspector could be considered an expert whose opinion about the nature of the liquor found was opinion evidence under section 45 of the Evidence Act
Dismissing the appeal HELD  i It is not desirable to lay down an inflexible rule on questions of fact even though their determination requires the adoption of scientific methods and tests
It is really for the court of fact to decide whether upon a consideration of the totality of the facts in a case It has been satisfactorily established that the objects recovered from the possession of the accused included liquor of prohi bited strength Hydrometer test would be enough if the liquid was known to contain alcohol because it would help to determine the strength of alcoholic contents
825 D In the instant case the false defence taken that the appellant was not present at the house in question when it was searched could indicate that he wanted to keep his distance from the recoveries made as he was aware of their incriminating nature
Secondly the appellant who was an employee in a liquor shop could not be so ignorant about the nature of the liquid recovered as not to be able to raise the question before the trial court that the liquid under consideration was not liquor as defined in the Act
There was no reason why the accused who could be presumed to have enough knowledge about the composition and strength of the prohibited liquor could not raise this question in the trial court so that the prosecution might cure whatever weakness there might be in the evidence on that point
The Excise Inspector was cross examined at considerable length but the whole of it was directed at showing that the recoveries were not made from the possession of the appellant
No question was put to him In cross examination to suggest that the appellant questioned the composition or strength of the liquid recovered as alcohol of prohibited strength or the competence of the Excise Inspector to give his conclusion on the strength of tests ad opted by him
The appellant should not be allowed to raise it at a stage when it may be difficult or impossible to adopt a conclusive test
The objects recovered from the possession of the appellant almost proclaim the nature of his activity and of the liquid which could be in his possession
iiThe competence of the Excise Inspector to test the composition and strength of the liquid was not questioned at all
Nor was his competence questioned to give his conclusion on the strength of the tests adopted by him
No defence evidence was led to indicate that the liquid could be anything else
826A 822 In the instant case the question of admissibility of the opinion of the Excise Inspector was however not raised before the Sessions Judge
The Excise Inspector had deposed that he had put in 21 years  service as Excise Inspector and had tested lakhs of samples of liquor and illicit liquor
On the facts of this case this particular Excise Inspector could be
treated as an expert within the meaning of section 45 of the Evidence Act
The evidence was sufficient to prove the prosecution case beyond reasonable doubt
826 C State of Andhra Pradesh vs Madiga Boosenna  Ors   distinguished
State vs Madhukar Gopinath Lalze ILR 1965 Bombay 257 and Ram Jus vs State  referred to