PITAMBER Vs. STATE

JUDGEMENT

(1.) THE case of the prosecution was that in the morning of 10th November, 1970, Abid Nasir- Khan, Excise Inspector, with the help of S. I. Shabbia; Husain of P. S. Ujhani and other members of the public made a search of the house of Pitamber, the applicant, as a result whereof a Canister containing about 23 bottles of illicit liquor was found in possession of Pitamber, Pitamber was accordingly charged for having possessed one tin containing about 23 bottles #f liquor which on test was found to be Mlicit liquor and thereby committed an ffence under Section 60 (a) of the U. P. Excise Act. The applicant denied the case of the prosecution, and pleaded that he was not guilty. The prosecution examined Abid Nasir Khan, Excise Inspector (P. W. 1) and Shabbir Mussain (P. W. 2 ). The prosecution also liled four affidavits of Ashik Husain, Radhey Sham, Mauji Lai and Mohammad Akram. Pitamber examined one witness, namely, Kalyan Das in defence. The learned Magistrate having found the applicant guilty of the charge convicted him under Section 60 (a) of the U. P. Excise Act and sentenced him to under-Uo six months Rigorous Imprisonment. Pitamber filed an appeal which was dismissed. He has now come up in revision to this court. '.

(2.) THE learned Counsel for the applicant contended that both the courts beiqw erred in placing reliance on the testimony of Abid Nasir Khan, Excise Inspector and the report submitted by Wta, as also the four affidavits referred kerein before. It was urged that it was ot established that Abid Nasir Khan was an expert in making a test as to whether the recovered'article was liquor. It was also urged that the four affidavits mentioned herein before were not properly sworn and were in fact not affidavits at all. I was taken through the statement of Abid Nasir Khan and the report submitted by him. He had not deposed about his experience. There is no averment by him as to how long he has been in service as an Excise Inspector and how many samples of illicit liquor had till men been tested by him. He had no doubt stated that he had tested the contents of the Canister with the aid of litmus paper, Hydrometer and Therma-meter and had also smelt and tested the contents of the Canister. This is also stated by him in his report. According to him the strength was 36. 39% where s the permissible strength was 36%. It was urged on behalf of the applicant that even the Excise Inspector had thus found (that strength of the contents exceeded Wie permissible limits by 39%. it has not come in evidence that the Excise Inspector was an expert in making the test. The slight negligible variation in the strength was explainable and it was quite posandible that because of the lack of expert knowledge in making the test the expert might , have incorrectly measured the strength as 36. 39%. Both the courts below have, hewever, on the consideration of the totality of the facts in the case arrived at a conclusion that the object recovered from the possession of the accused included liquor.

(3.) IT was contended before ,. the learned Magistrate that the liquor which was said to have been recovered was not illicit liquor. It was also contended before the appellate court below that the liquor said to have been recovered from the applicant was not subjected to any chemical test. The prosecution has relied solely on the testimony of Abid Nasir Khan to prove that the Canister contained illicit liquor. Abid Nasir Khan had stated that he had tested the content;" of the Canister. Whether the statement of this Excise Inspector can be considered as a statement of an expert admissible under Section 45 of the Indian Evidence Act ? The learned Counsel for the State submitted that the opinion of the Excise Inspector Abid Nasir Khan could be treated as an expert's opinion within the meaning of Section 45 of the Evidence Act and placed reliance 'on the case of Sri Chandra Batra v. State of U. P In Batra's case it was found that where the Excise Inspector who had out in 21 vears service as Excise Inspector and had tested lacs of samples of liquor and illicit liquor and whose competence to test the composition and strength of the Liquid was not questioned at all, he could be treated as an expert within the meaning of Section 45, Evidence Act.