Sri Chand Batra v. State of U.P.

Judgment

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 138 of 1970. From the judamcnt and order dated the 4th May 1970 of tbc Alla· habad High Court at Allahabad in Criminal Rcvl1ion No. 1649 of 1968. K. L. Arora and M. M. K1hat1·/ya, for the appellant. 0, 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 Hi&h Court under Article J 34(1) (c) of the Constitution, The appellant was convicted under Section 60(a) 1 of the U.P. Bx:ise Act and sentenced to six months rigorous imprisonment and a fine of Rs. 1000/·, and, in default of payment of the tine, to undergo imprison· ment for a further period of two months. His conviction and sentence were confirmed by the Sessions' Judge as well as by the Hig;h 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. Thes~ were said to be : "I. Five drums, each containing about 20 litres liquor ot 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 bottfos 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 anJ that he was not present at the time when its search was taken. said that the Excise Inspector came to the liquor shop of Oyan. Chand Chander Mohan. situated in Sadar liazar. Meerut, where he was work· ing as a salesman. Accordioa to him, the Excise Inspector wanted to check the stock of spirit and demanded the register from him.

As •re resister was locked Jn a drawer the Excise Inspector Is alleaed to II s. c. BATRA v. u.P. STATE (Beg, !.) have abused the appellant and implicated him falsely for alleged pos· sesslnn of the objects mentioned above .. It may be mentioned here that the aearch of bunaalow No, 243, Circular Road, Mecrut Cantonment, from where the recovery waa made, was taken after the luue o! a reaular search warrant (Ex. Ka. 1) under Section S2 of tho U.P. Excise Act, 1910, by a First Clu1 Maal•· trato on 26·10-1967. The very detailed recovery Memo (Exhibit lea. 2) dated 27-10-1967 was signed by as many as six witnesses, In addi· tion to having been signed by the officer who conducted the aearch and by the appellant himaelf. In this Memo, In the column for remarks, the ~esult of tho test report of the liquor is given as follows : "Teat report of tho liquor. Tho content• of all the five (paper torn) of dirty white colour like, (paper torn) characteristics amell of the (paper torn)

Hydrometer tc1t Ii 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. II Hence the contents of each drum are liquor of 0.P. strength". Two questions have been ruised in this case for our consideratio11 : 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 h~. hid professed ignorance about the·naturo of the liquid recovered from the room of the house in which he wa1 found.

The false defence taken, that he was not present at the ·houae In question when It was searched, could Indicate tliat he wanted to keep his distance from the recoveries made as he was aware of their incrinunating nature. Moreover, the appellant, who wa1 an employee in a liquor shop, could not be so ignorant about the nature of the liquid recovered as not io 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 aub· stantiate his plea that he was not present at the house from which the recovery was made but was taken from the 1hop in Sadar Bazar. And, that was the only question of fact which seems to have been railed and con1ldered In the Trial Court at considerable len;th. Before the SN· sions Judge also the main quHtion raised was whether the appellant was arrested from the ahop In Sadar Bazar or. from the Kothl at Cir· 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 tbdiquid recovered had not been proved to be illicit liquor even if it Was established that the recovery was from th" possession of the appellant. He had relied on State of Andhra Pradesh v. Madl11a Boosenna cl Ors.(I) 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 wifh the ·aid of litmus paper, hydrometer, and . thermometer and not confined himself to smelling the contents of the dr.Ums. 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 questior.s 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 (supraJ-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 kno·.vledge involved in ·the performance of their duties including knowledge of the rrocess of distillation and that the Excise Inspector C. D. Misra, P.W. , was a senior ma11 incharge of. raids and detection of important cases so that his opinion evidence was admissible, pre9umably 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 corroborating 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 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 employinq the hydroll\eter test. In other words, according to this decision, the Hydrometer test would be enough if tile liquid was known to contain alcohol because it would help to determine· the strength of alcoholic contents. (l) [19671 3 S.C.R. 871. (2) J.L.R. {19651 Bombay 257 .. S. c. BATRA v. U.P. STATE (Beg, J.) &25> Another case cited was Ram Ju~ v. $tate(1), where a Divisiol' Bench of the Allahabad High Court had held that evidence based on ch~mical analysis was essential in order to establish that a substance. alleged to be Ganja, recovered from an accused person, was really Ganja. Jn tj)at case, reliance was placed upon the judgment of this Court in Boosenna's case (supra) from which the following p~age was. cited : "Except for a ~eneral 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 ~melling sense of the prohibition officers, and basing a conviction, on an opinion expressed by those officers, under the ciicumstances, 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 dow11 an inflexible rule on questjims 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 possmiou of the accused included liquor of prohibited strength. We sec 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 conclnsive 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 to establish its case it becomes the duty of the defence to rebut that· evidence. In the case before us. the appellant's Counsel crossexamined Shri C. D. Misra, P.W. !, Excise fospector, 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- (I) 1970 A.L.J. 1343. ·1!26 [1974]

2 s.c.a. · ·Cd as alcohol of prohibited strenath or the competence of the Excise Inspector to alvo his conclusion on the 1tronath of IClll adopted by him. Apia, no dofeoce evidence was led to iodlcato that the liqUid · cou1d be anythlna else. Theso considoratlon1 would bo 1ulftclent to disposo off tho polntl raised on behalf of the appellant In tho case boforo us. We may, however, observe that wo aaree with the High Court that tho 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 o! liquor and illicit liquor. As already pointed out, the competence of C. D. Misra to test the composition and strenath of th~ liquid under consideration was not queatloned at all.

We, therllfore,. think that this particular Excise Inspector could be treated as an expert within the mcanlna of Section 4S of the Evidence A~t. Tho Exci10 Inspector had, in addition to employing the 1nicllina teat, used all the other tests he could roasonably adopt. If hit competence to a!vo his opinion or tho 1umclcncy of the testl adopted by him had been questioned in tho Trial Court, tho ·prosecution woUid have been in a position to lead more evidence on those qucatlons. We also .find that tho objects recovered from tho possc11ion of the appellant almost proclaim the naturo of his actlvltr and of the liquid which could be in his possession. On the facts and circumstances of this case, neither Boosenntis case nor any other cas~ 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.