J.N. Takru, J. - (1.) HUB Lal and three others have filed this revision against their conviction and sentences of three months' R.I. each Under Section 60(b) of the Excise Act.
(2.) ACCORDING to the prosecution, the Applicants were found preparing illicit liquor in the open and in the gher near the house of Kashi Nath Bhind. Sri Jag Narain Pathak, S.I. who carried out the raid, look the said liquor in his possession after complying with the legal formalities connected with it. Thereafter the said liquor was sent for chemical examination and on receipt of the report of the Analyst, the Applicants were prosecuted for the offence mentioned earlier. The learned Magistrate accepted the prosecution evidence and on its basis convicted and sentenced the Applicants as stated above. The Applicants went up in appeal to the lower appellate Court but when they met with no better luck there they filed the present revision. On behalf of the Applicants two contentions were urged in support of this revision but as one of them is sufficient for its disposal, it is necessary to state only that contention. According to the Learned Counsel as there was no legal evidence to show that the article, recovered from the Applicants' possession was 'liquor' within the meaning of the UP Excise Act, the Applicants' conviction Under Section 60(b) of the Excise Act could not be sustained After hearing the Learned Counsel for the parties, I am satisfied that this contention is well -founded.
(3.) NOW the only witness on whose testimony reliance was placed by the prosecution to prove that the said article was 'liquor' is PW D.N. Srivastava, the Excise Inspector who analysed the sample of the article in question. PW Srivastava stated that he did not apply any chemical test to find out whether the sample seat to him was alcohol and he gave his opinion solely on the basis of smell. The test of smell is not a sure guide for holding that the sample is of 'liquor' under the UP Excise Act. In State of Andhra Pradesh v. Madiga Boosenna and Ors. : AIR 1967 SC 1550 the Supreme Court, after observing that the evidence of smell is not sufficient for determining whether a certain article is liquor or not went on to say that, In such a case better proof by a technical person who has considered the matter from a scientific point of view is not only desirable but it is necessary to establish that the articles seized is one coming within the definition of 'liquor'. The fact that the accused have not challenged effectively the answers given by the prosecution witnesses that the commodity is arrack will not absolve the prosecution from establishing the ingredients of the offence for justifying the conviction. As in the instant case the only evidence on which the article recovered from the possession of the Applicants was held to be 'liquor' is the test of smell, the prosecution cannot be held to have established one of the ingredients of the offence and the conviction of the Applicants cannot stand. I accordingly set them aside and allow this revision. The Applicants were granted bail for the pendency of their revision. They need not surrender and their bail bonds are hereby discharged.;