Case Note & Summary
In this criminal appeal before the Supreme Court, the appellant challenged his conviction under Section 60(a) of the U.P. Excise Act, 1910 for preparing illicit liquor. The prosecution case arose from a raid conducted on 27-10-1967 at a bungalow in Meerut, where the appellant was allegedly found in a room with drums and materials used for preparing liquor. A search warrant had been issued under Section 52 of the U.P. Excise Act by a First Class Magistrate on 26-10-1967. The raiding party seized five drums each containing about 20 litres of liquid, three empty drums, empty bottles bearing labels, labels with the words 'Khody's Herecules', and capsules. The Excise Inspector tested the contents of the drums using litmus paper, hydrometer, and thermometer, recording specific O.P. strengths for each drum. The appellant pleaded that he had no concern with the bungalow and was not present at the time of search; he claimed false implication from a liquor shop in Sadar Bazar, Meerut, where he worked as a salesman, alleging that the Excise Inspector abused him after a register was locked in a drawer. The trial court convicted him under Section 60(a) and sentenced him to six months rigorous imprisonment and a fine of Rs 1000, with default imprisonment of two months. The Sessions Judge and the High Court of Allahabad confirmed the conviction and sentence. The High Court granted a certificate of fitness for appeal to the Supreme Court under Article 134(1)(c) of the Constitution. Before the Supreme Court, two questions were raised: first, whether the smelling test along with other circumstances was sufficient to establish that the recovered liquid was illicit liquor of O.P. strength; second, whether the Excise Inspector could be considered an expert whose opinion on the nature of the liquid was admissible under Section 45 of the Evidence Act. The appellant relied on State of Andhra Pradesh v. Madiga Boosenna to argue that chemical analysis was essential, and cited State v. Madhukar Gopinath Lalge and Ram Jus v. State to contend that hydrometer test alone could not prove alcohol content. The respondent submitted that the Excise Inspector had 21 years of experience, had tested lakhs of samples, and had used litmus paper, hydrometer, and thermometer; the false defence of absence indicated guilty knowledge; and the appellant's failure to raise the issue of composition or strength before the trial court barred the argument. The Supreme Court held that no inflexible rule should be laid down on questions of fact even when scientific tests are involved; the court of fact must decide on the totality of circumstances. A hydrometer test is sufficient if the liquid is known to contain alcohol. The false defence and the appellant's presumed knowledge as a liquor shop employee corroborated the prosecution. The Excise Inspector was treated as an expert under Section 45 because of his long service and training; his opinion was not challenged in cross-examination. The Court distinguished Boosenna's case and dismissed the appeal, upholding the conviction and sentence. The decision affirmed that the evidence was sufficient to prove the prosecution case beyond reasonable doubt.
Headnote
A) Criminal Evidence - Expert Opinion - Excise Inspector as Expert - Evidence Act, 1872, Section 45 - The appellant challenged the admissibility of the Excise Inspector's opinion regarding the nature and strength of the recovered liquid. The Court held that an Excise Inspector with 21 years' service and experience of testing lakhs of samples of liquor could be treated as an expert under Section 45 of the Evidence Act; his competence and the tests adopted were not questioned in cross-examination, and surrounding circumstances corroborated his opinion. Held that the opinion evidence was admissible and sufficient. (Paras Not mentioned) B) Criminal Trial - Proof of Illicit Liquor - Scientific Tests and Corroborating Circumstances - U.P. Excise Act, 1910, Section 60(a) - The issue was whether the smelling test along with hydrometer, litmus paper, thermometer tests and other circumstances established that the liquid was illicit liquor of O.P. strength. The Court held that no inflexible rule should be laid down; the court of fact must decide on the totality of facts, and a hydrometer test is enough if the liquid is known to contain alcohol. False defence of absence and the accused's presumed knowledge as a liquor shop employee corroborated the prosecution. Held that the conviction was sustainable. (Paras Not mentioned) C) Criminal Procedure - Plea Raising - Failure to Challenge Composition or Strength in Cross-Examination - Evidence Act, 1872, Section 45; U.P. Excise Act, 1910, Section 60(a) - The appellant, an employee in a liquor shop, did not raise before the trial court that the liquid was not liquor as defined by the Act or challenge the Excise Inspector's competence. The Court held that allowing such a question at the appellate stage would be difficult or impossible to cure by conclusive test, and the failure to cross-examine on these points indicated weakness in the defence. Held that the appellant could not raise the issue later. (Paras Not mentioned)
Issue of Consideration
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 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.
Final Decision
Appeal dismissed; conviction and sentence under Section 60(a) of the U.P. Excise Act, 1910 upheld. The Supreme Court held that the Excise Inspector could be treated as an expert under Section 45 of the Evidence Act, his tests were not confined to smelling but included hydrometer, litmus paper, and thermometer, and the totality of circumstances including false defence proved the prosecution case beyond reasonable doubt.
Law Points
- 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 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
- Hydrometer test would be enough if the liquid was known to contain alcohol because it would help to determine the strength of alcoholic contents
- false defence of absence from the searched premises could indicate awareness of incriminating nature of recoveries
- accused employed in a liquor shop could be presumed to have knowledge of composition and strength of prohibited liquor
- failure to question composition or strength of liquid in cross-examination precludes raising the question at a later stage
- Excise Inspector with long service and experience of testing lakhs of samples can be treated as an expert under Section 45 of the Evidence Act
- opinion evidence of Excise Inspector admissible when competence not questioned and corroborated by surrounding circumstances
