Punjab Singh vs State

Thakur, J.

(1) The petitioner was convicted for an offence under section 48 of the Excise Act by the Special Excise Mobile Magistrate, Jammu by his

judgment dated March 31, 1970. On appeal the learned Sessions Judge Jammu, vide his Judgment dated Nov. 9, 19^0 has upheld the conviction

& sentence. This revision petition is a directed against the appellate judgment of the learned Sessions Judge, Jammu.

(2) The prosecution story briefly put was that a raiding Excise party searched the house of the petitioner in village Satraian Tehsil R S. Pura on

January 6, 1970 In the course of the raid it was found that the petitioner had a working still in his house from which illicit liquor was being distilled.

A pitcher with illicit liquor and four tins of liquor and some liquid material for preparing illicit liquor was recovered and seized by the Raiding Pasty.

A complaint under Section 48 of the Excise Act was accordingly filed in the court of the Special Excise Mobile Magistrate. Jammu, against the

petitioner. The projection produced in support of its case Rattan Chand, Excise Inspector, Narinjan Singh, Excise Guard, Gurhaksh Singh.

Chhajju Ram, Prithi Pal Singh E. T. O. Vaishno Dass and Jagmohan Gupta, Munsiff Judicial Magistrate, R. S. Pura. The petitioner pleaded not

guilty to the charge and examined Devi Duss and Msghar Ram, two witnesses in defence. The trial Magistrate on an appreciation of the evidence

found the petitioner guilty of an offence under section 48 of the Excise Act and sentenced him to rigorous imprisonment of one year and a fine of

Rs 300/. The petitioner was directed to suffer further rigorous imprisonment for three months in default of payment of fine.

(3) The petitioner filed an appeal against his conviction and sentence before the learned Sessions Judge, Jammu, who again examined the evidence,

believed it and unheld the conviction recorded and the sentence awarded by the trial Magistrate. This revision as stated earlier calls in question the

orders of the courts below and it is submitted that the conviction of the petitioner is not legally sustainable.

(4) The case came up before me sitting singly on April 10th, 1973. After having heard (he counsel for the parties I referred this case for disposal to

a Division Bench in view of the divergent view expressed by the court in some judgments delivered earlier. This is how the case came up before

the Division Bench.

(5) Mr. Rounaq Singh appearing on behalf of the petitioner challenged the findings recorded by the court below on the ground that there was no

legal evidence of the fact that the liquid seized from the possession of the petitioner was liquor as defined in Section 3 subsection (3) of the Excise

Act or that the untensile seized by the Raiding Party were used for the purposes of manufacturing liquor or tiny intoxicating drug.

(6) We have examined the evidence & we find that the only witness who has deposed regarding the seized liquid being liquor is Vaishno Dass,

Excise Inspector, There is nothing in his statement to show that he is an expert on the subject. Nothing has bean mentioned as to whether be has

undergone any training on the subject of liquor testing or that he holds any Degree or Diploma of any recognised Institution in chemical analysis.

His finding that the liquid seized was illicit liquor is based on colour, smell and taste of liquor. In addition he has given the strength and temperature

etc of the liquid which are not conclusive tests for determining whether the liquid is liquor or not.

(8) In this case as stared earlier even Vaishno Dass, P. W who is an Excise Inspector has not said even a word whether the utensils seized in the

case could be used for purposes of manufacturing illicit liquor. For these reasons therefore it is extremely difficult to hold that the seizure of the

liquid and the utensils from the house of the petitioner during the course of the raid would be sufficient for recording of the petitioner either under

clause (h) or under clause (e) of Section 48 of the Excise Act. The principle behind the rule of presumption contained in Section 57 of the Excise

Act is that if a person who is fully conversant with the scientific process of the illicit liquor has deposed before the court that the utensils implements

or apparatus are used for manufacturing purpose that should lead to the inference that the accused intended to utilise those utensils, implements etc.

for purpose of manufacturing illicit liquor In the absence of an expert evidence to the effect that the utensils could be used for purpose of

manufacturing it is difficult to hold the petitioner guilty under clause (e) of Section 43 of the Excise Act. The presumption under Section 57 of the

Excise Act arises only if the prosecution has proved that the seized utensils could have been used for purposes of manufacturing illicit liquor.

(9) So far as the test regarding liquor is concerned, it has been held by the Supreme Court and this Court earlier, to which a reference will be made

shortly, that the method of determining whether the seized liquor is illicit liquor must be based on a scientific knowledge of a person who can be

reasonably said to be an expert.

(10) In State of Andhra Pradesh Vs. Magiga Boosema and others reported as AIR 1967 SC 1550, the question arose whether liquid seized in the

case was in fact proved to be liquor within the definition of the Prohibition Act. The only evidence in the case was a general statement contained in

the evidence of the witnesses that there was a strong smell of alcohol, emanating from the tins which were pierced open. Excepting this there was

no other satisfactory evidence to establish that the article seized in that case was liquor and fell within the definition given in the Prohibition Act.

Their Lordships of the Supreme Court held that the conviction of the accused could not be upheld as in such a cess better proof by a technical

person who could consider the matter from a scientific point of view was not only desirable but was necessary to establish that the article seized is

one falling within the definition of 1quor. This judgment of the Supreme Court was relied upon by Jaswant Singh J. in Babu Singh Vs. State,

reported as 1969 KLJ 235, wherein while deciding a similar question the learned Judge observed as under :

After a careful consideration of the matter, I think that the contention of the learned counsel for the appellant is well founded and must prevail. It

has to emphasised that before a prosecution under Section 48 of the Excise Act, can succeed, it must be conclusively established that the seized

article is illicit liquor. Without a satisfactory proof in this behalf the conviction of the accused can on no account be maintained.

In the present case the evidence of Shri Babauud Din who appeared as an expert on behalf of the prosecution is merely to the effect that from the

smell, taste and hydrometer test he came to the conclusion that the seized article as illicit liquor. He has not testified that he has undergone any

training in testing liquor by means of hydrometer. Now regarding hydrometer test it has been observed by the Bombay High Court in AIR I967

Bombay 61 (Supra) that it cannot be accepted as a safe test to find whether a particular liquid does or does not contain alcohol. Again in AIR

1967 SC 1550 (Supra) their Lordships have held that the burden of proving that the article seized comes within the liquor is on the prosecution

and proof by a technical person who has considered the matter from a scientific point of view is not only desirable but necessary as well. The

decision in AIR 1964 Andhra Pradesh, 429, is also to the same effect.

From the forefiling discussion it follows that the hydrometer tests is nor a satisfactory means of proving alcoholic content of an article. It is merely

used for determining the specific gravity of density of a liquid, bat it cann u be held on the basis of the result of Hydrometer test that the liquid

contains alcohol. The sure method of ascertaining the contents of a liquid is to have a chemical test done by a chemical examiner or soma other

expert in the line. As the prosecution has not made any request for the return of the liquid to be examined by a Chemical Examiner and practice of

returning the Article for determining whether it contains alcohol or not has been locked upon with disfavour in AIR 1961 Gujarat, 4. I do not feel

inclined to order the return of the article to be chemically tested.

(11) In another case decided by a Division Bench of this Court in Criminal revision No. 40 of 1970 entitled Gahta Vs. State the court observed as

under :

Mr. Rounaq Singh appearing for the petitioner raised a short question of law. In the first place he submitted that there is not expert evidence on

the record to show that the article which the accused is said to be manufacturing was illicit liquor because of the smell of illicit liquor by itself is not

conclusive and other scientific tests should have been applied. It was then argued that no evidence has been led by the precaution to show that the

implements & the apparatus found in possession of the accused could actually be used for the purpose of manufacturing liquor A reference to the

charge framed again t the accused shows that he was not convicted for manufacturing liquor as contemplated by Section 48 (b) of the Act, but was

convicted for being in possession of instruments and materials used for the purpose of manufacturing liquor which is punishable under Section 48

(e) of the Act. These are two distinct acts with separate ingredients and where the accused was charged under Section 48 (?) it was not only

incumbent on the prosecution to prove that these articles were recovered from the possession of the accused but also that these articles could be

used for manufacturing liquor or any intoxicating drug. No evidence has been led by the prosecution in this regard. No witness has said that these

articles could be used for the purpose of manufacturing illicit liquor. In fact the prosecution seems to bank >n the fact that the accused was guilty of

an offence under Section 48 (b) and led evidence thereon but there was no charge under that section. Thus there is neither any finding nor any

evidence to substantiate the charge framed against the accused under Section 48 (e) namely being in possession of material etc. for the purpose of

manufacturing illicit liquor. This being the position, the prosecution case must fail.''

(12) As a matter of fact Mr. Anil Dev Singh appearing on behalf of the State was sent for at the time of dictating the judgment and was asked to

show as to how could he insist on the conviction being upheld. In the light of the evidence led in the case and the law on the point Mr. Anil Dev

Singh was fair enough to concede that the prosecution cannot succeed on the material placed before the court as there was absolutely m evidence

of the fact that the utensils seized in the case could actually be used for purpose of manufacturing illicit 1iquor and that the only evidence available

was that these utensils were in fact recovered from the house of the petitioner during the course of the raid.

(13) It is true that this court on its revisional side would not ordinarily interfere with the findings of fact but here is a case in which the finding that

the liquid seized was illicit liquor or that the utensils seized were used for manufacturing of illicit liquor was based on evidence which, the law says,

should not be treated as reliable. A finding which stands on 1egally unreliable evidence cannot be said to be a finding at all muchless a finding which

binds this court in revision.

(14) In the result the revision application succeeds and is accordingly allowed. The conviction recorded and the sentence imposed by the two

courts below on the petitioner not being sustainable are set aside and the petitioner is acquitted. The bail bonds furnished by the petitioner snail

stand cancelled.