Decided on August 02,1971



- (1.) The petitioner was convicted by the learned Judicial First Class Magistrate of Boath under section 34 (1) (A) and (F) of the Andhra Pradesh Excise Act and sentenced to undergo rigorous imprisonment for a period of two years. The prosecution case was that the Sub-Inspector of Police, Uthoor raided the house of the accused on 5th January, 1969, accompanied by panchas and found her in the act of distilling liquor. There were an oven with an earthen pot on it with boiling 'Gulmoha' wash, a bamboo 'guttam', a wooden 'Chattu', an earthen pot with 'Gulmoha' wash, a gunny bag containing 15 kgs. of 'Gulmoha' flowers and a few bottles full of liquor. According to the evidence of the panch witness the earthen posts as well as the bottles were smelling of liquor. The learned Counsel for the Petitioner urged that there was no scientific analysis of the contents of the bottles and the earthen pots and, therefore, there was no proof that the pots and the bottles which were seized from the accused contained liquor. The learned Counsel relied on the decision in In re Madiga Boosanna, (1964) 2 An.W.RT 127 : (1964) M.L.J., (Cr.) 519 : A.I.R. 1964 A.P. 429. and State of Andhra Pradesh v. Boosanna, (1968) 1 M.L.J. (S C.) 57 : (1968) 1 An.W.R. (S.C.) 57 : (1968) M.L.J. (Crl.) 12 : (196.8) 1 S.C.J. 160 : A.I.R.. 1967 S.C. 1550, In In re Madiga Boosanna, Mirza, J., observed: " When scientific methods are available to prove the fact of alcoholic content of an article, I think the prohibition officers should not be allowed to confine proof of such an article by their mere oral statements, because the primary duty of the prosecution is to exclude every possibility of a doubt or suspicion before they ask for a conviction of a person charged under the Act. In these circumstances, the the prosecution has failed to prove satisfactorily that the contents of the tins were either alcohol or arrack".
(2.) It is difficult to understand Mirza, J., as having laid down any principle of general application. After all, the question whether the prosecution has succeeded in establishing that an article seized in a particular case is liquor or not must naturally depend on the facts of each case and the evidence adduced. Neither the Evidence Act nor the Excise Act prescribes any particular mode of proof. Statutes like the Prevention of Food Adulteration Act and the Drugs Act prescribe certain modes of proof and insist on the prosecuting agency obtaining the opinion of the Government Analyst and even prescribe the scientific tests which should be carried out by the expert before he can venture an opinion. The Excise Act contains no similar provisions. It cannot, therefore, be insisted that there must be chemical analysis before a Court can hold that an article is liquor. The failure of the prosecution to adduce expert evidence may perhaps be taken into consideration by the Court in arriving at a conclusion whether an article is liquor or not. But from the mere absence of expert evidence it cannot be concluded that the prosecution has failed to prove that the article is liquor. It should be remembered that the evidence of an expert is only to help the Court to arrive at a conclusion. Under the Evidence Act opinion of an expert is relevant but it never conclusive. If the evidence of an expert is not conclusive of a fact why should the absence of such evidence be treated as fatal ?
(3.) In section 3 of the Evidence Act, 'fact' is defined as to mean and include "anything, state of things, or relation of things capable of being perceived by the senses". Section 9 of the Evidence Act' states, "facts............which support or rebut an inference suggested by a fact in issue or relevant fact or which establish the identity of any thing or person whose identity is relevant...... ........or relevant in so far as they are necessary for that purpose." Section 60 requires that oral evidence must be direct and that if it refers to a fact which could be perceived by any other sense (othtr than seeing and hearing) it must be the evidence of a witness who says he perceived it by that sense. Therefore, the oral evidence of witnesses who identify a certain article as liquor because of its smell or who state that the article smells of liquor is relevant. The weight to be attached to such evidence is another matter depending on the circumstances of each case. Most persons can perhaps identify the smell of liquor and Excise Officers whose duty it is to deal with these matters every day should certainly be able to identify the smell of liquor. It is true that certain medicinal preparations also emanate the smell of alcohol. Whether on the facts and circumstances of a particular case the article seized could have any connection with a medicinal preparation is a matter for the Court to consider. Where the article is seized from a person who cannot possibly have any connection with medicinal preparations it will be extremely fanciful to hold that the article might perhaps be a medicinal preparation. The person from whom the article is seized, the place where from it is seized, the quantity which is seized and the other surrounding circumstances must guide the Court in arriving at a conclusion whether scientific analysis is necessary or not in the circumstances of the case.;

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