http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: SRI CHAND BATRA

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT19/12/1973

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH CHANDRACHUD, Y.V.

CITATION:  1974 AIR  639            1974 SCR  (2) 821  1974 SCC  (4) 247

ACT: U.P.  Excise  Act-s. 60(a)-Whether smelling test  enough  to justify  conclusion  that  the liquid  was  illicit  liquor- Whether  opinion of the Inspector opinion evidence under  s. 45 of the Evidence Act.

HEADNOTE: 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  s. 60(a),  U.P. 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  O.P. 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  s.  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

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. (ii)The  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 s.  45 of  the Evidence Act.  The evidence was sufficient to  prove the prosecution case beyond reasonable doubt. [826 C] State of Andhra Pradesh v. Madiga Boosenna & Ors., [1967]  3 S.C.R. 871, distinguished. State v. Madhukar Gopinath Lalze, I.L.R. [1965] Bombay  257, and-Ram Jus v. State, [1970] A.L.J. 1343, referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal 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 U.P. 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

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 6.45 p.m., 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 O.P. strength,  the  sample               whereof  was taken in five bottles  from  each               tin.               2.    Three   empty  drums  of  five   gallons               capacity.               3. Thirty empty bottles bearing labels.               4.    Labels. 120 in number, bearing the words               "Khody’s Herecules     ".               5.   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  (Ex.  Ka. 1) under Section 52 of  the  U.P. 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 13.2-50.9 O.P. Drum No. 2-77 F x 13.4-50.7 O.P. Drum No. 3-76 F x 13.8-50.6 O.P. Drum No. 4-76 F x 14.2-50.2 O.P. Drum No. 5-77 F x 13.6-50.5 O.P. Hence  the  contents  of  each  drum  are  liquor  of   O.P. 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 "O.P"  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

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 v.   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 U.P. 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,  P.W.  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 134(1) (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  v. Madhukar   Gopinath  Lalge(2)  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

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) [1967] 3 S.C.R. 871.  (2) I.L.R. [1965] Bombay 257. 825 Another  case  cited  was  Ram Jus v.  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               P.Ws. 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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

P.W.  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)  1970 A.L.J. 1343. 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. P.B.R. Appeal dismissed. 827