DUDHNATH YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner has been convicted under Section 47 (a) of the Bihar and Orissa Excise Act, 1915 and sentenced to undergo rigorous imprisonment for three months both by the trial court and the lower appellate court.

(2.) The simple case of the prosecution is that on 29-4-75 at 11.30 a. m. the Excise Inspector, Rajeshwar Prasad Sharma (P. W. 3) alongwith some members of his staff raided the house of the petitioner and recovered there from one tin containing 88 litres of illicitly distilled Mahua liquor and 80 Kgs of Mahua Jawa. ''The articles were seized and a seizure list was prepared. The Inspector tested the liquor with hydrometer and finding it illicitly distilled liquor, prosecuted the petitioner for the same. The trial court as well as the lower appellate court accepting the submission of P. W. 3 relying on the test conducted by him found it to be illicitly distilled liquor and convicted and sentenced him as said above.

(3.) The only point that arises for decision here is whether the conviction based on the type of test adopted by P. W.3 is legal or not. I have been taken through the evidence of P. Ws. 1 and 3 on the point. P. W. 1 is the Orderly of the Inspector who has only said about the recovery of the articles, the sealing of the tin etc. He had also signed the seizure list. P. W. 3 is Rajeshwar Prasad Sharma, the Inspector of Ecise. In paragraph 2 of his examination-in-chief he has said that the Mahua liquor was tested by him and was found to be of 75 U. P. strength. In cross-examination (Part III) he has said that he tested the liquor with hydrometer and litmus paper. He has clearly admitted that he did not perform any other test. Here itself it may be mentioned that the witness has not said in his evidence as to whe ther he has been specially trained in the art or not. The courts below have relied upon his evidence as the opinion of an expert under Section 45 of the Evidence Act. It is necessary according to that section that the person who claims to be the expert should satisfy the court that he is specially skilled in the science. Only saying that P. W. 3 is an Excise Inspector does not mean in the eye of law that he is specially skilled the science of testing liquor. The learned counsel for the petitioner has relied upon certain authorities to say that it was necessary for the witnesses to have taken oath on the point. In an Allahabad case of Pitambar v. State, 1975 Cr LJ 948, a single Judge it has been held that the Excise Inspector in a case like this has to say about his qualification or his experience how long he has been in service and as to how many samples he has tested. I do not think it was necessary for the Excise Inspector to state how many samples he has tested and how long ex perience he had but of course it was necessary for him to say that he had been trained in this particular art of testing. There are other authorities on the point also which it is not necessary to cite but the evidence as it does not con form to the requirement of Section 45 of the Evidence Act.