In a prosecution under S. 4 (1) (a) of the Andhra Pradesh (Andhra Area) Prohibition Act, 1937, the prosecution must establish that the commodity transported by the accused is liquor as defined in S. 3 (9) of the Act.

Judgment

VAIDIAL1NGAM, J. : In this appeal, by special leave, on behalf of the State of Andhra Pradesh, the appellant herein, Mr. P. Ram Reddy, learned counsel, challenges the order dated January 17, 1964, of the Andhra Pradesh High Court, setting aside the conviction of the respondents, for an offence under. S. 4 (1) (a) of the Andhra Pradesh (Andhra Area) Prohibition Act, 1937 (Act X of 1937), hereinafter called the Act.

2. According to the prosecution, the respondents were found transporting, in a bullock cart, on the early morning of June 10, 1962, fifty gallons of arrack. It is the case of the prosecution that the prohibition staff found, on the day in question, a bullock cart, driven by the first respondent, in which the fifty gallons of arrack were found in 13 tins. Accordingly they were prosecuted for an offence under S. 4(1) (a) of the Act. All the respondents substantially denied, having committed the offence, with which they were charged.

3. The prosecution let in the evidence of the Prohibition Sub-Inspector, P. W. 1, and another petty officer of the prohibition staff, P. W. 4. The evidence of these two witnesses, was to the effect that when the bullock cart, in question, came near them, there was a smell of arrack. In particular, P. W. 4 has stated that the tins, which were in the bullock cart, were pierced with bayonet, and when smelt, they gave a strong smell of arrack. To corroborate the evidence of these two officers, the other witnesses. P. Ws. 2 and 5, who were stated to have witnessed this occurrence, along with the prohibition party, were also examined. They stated that when the bullock cart came near them they got a strong smell of arrack, and that the 12 tins were pierced with bayonet ends and their contents verified. Only some of the witnesses have been cross-examined, and the respondents have suggested to them that during that hour of the night, it would not have been possible for them to identify the persons, who were stated to have been in the bullock cart. No doubt, no specific suggestion, that the commodity that was seized, is not one to which the Act applies, has been made. During the trial, however the question appears to have been raised among other contentions, that the prosecution has not established the necessary ingredients for establishing that the respondents have committed the offence, under S. 4 (1) (a) of the Act. The trial Court, adverting to this aspect, has referred to the evidence of P. Ws. 1 to 4, who speak to a strong smell of arrack emanating from the court, and the tins being pierced with bayonet "ids. In view of this evidence, the trial Court is of the opinion that the ground for coming to the conclusion, that it was arrack that was being transported, is established. Ultimately, the trial Court accepted the evidence of the prosecution, found the respondents guilty of the offence under S. 4(1)(a) of the Act, and sentenced each of them to undergo rigorous imprisonment for six months.

4. The respondents challenged their conviction, before the learned Sessions Judge, Kurnool. Before the appellate Court also, the respondents pleaded that there is no proper proof, in this case, that the tins contained arrack. A mere statement, by the witnesses, that there was a strong smell of arrack, emanating from the tins when they were pierced with bayonet ends, is not sufficient to establish the guilt of the accused. They have also specifically raised the contention that samples of the commodity should have been sent for the opinion of he Chemical Examiner. This plea, of the respondents, was again brushed aside, by the learned Sessions Judge, on the ground that the prohibition officer must be considered to have got sufficient experience of smelling and knowing whether a liquid was arrack, or not, and, inasmuch as he has deposed that the liquid was found to be arrack by smell, that statement can be accepted as proof of the nature of the liquid that was being transported, by the respondents. The lear