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