Judgment

BEG, J.:- This appeal comes up before us by a certificate of fitness of the case for appeal to this Court granted by the Allahabad High Court under Article 134 (1) (c) of the Constitution.

2. The appellant was convicted under Section 60 (a) of the U.P. Excise Act and sentenced to six months rigorous imprisonment and a fine of Rs. 1000/- and in default of payment of the fine, to undergo imprisonment for a further period of two months. His conviction and sentence were confirmed by the Sessions Judge as well as by the High Court of Allahabad.

3. On 27-10-1967, at about 6.45 p.m. he was found by the raiding Excise Staff in a room of a bungalow in Meerut apparently preparing something with the aid of materials found there which were seized. These were said to be:

1. Five drums each containing about 20 liters liquor of O.P. strength the sample whereof was taken in five bottles from each tin.

2. Three empty drums of five gallons capacity.

3. Thirty empty bottles bearing labels.

4. Labels, 120 in number bearing the words "Khody s Hercules ....."

5. Different types of capsules, 142 in number."

His plea was that he had no concern with the bungalow in question and that he was not present at the time when its search was taken. He said that the Excise Inspector came to the liquor shop of Gyan Chand Chander Mohan, situated in Sadar Bazar, Meerut, where he was working as a Salesman. According to him, the Excise Inspector wanted to check the stock of spirit and demanded the register from him. As the register was locked in a drawer the Excise Inspector is alleged to have abused the appellant and implicated him falsely for alleged possession of the objects mentioned above.

4. It may be mentioned here that the search of bungalow No. 243, Circular Road, Meerut Cantonment from where the recovery was made, was taken after the issue of a regular search warrant (Ex. Ka.1) under Section 52 of the U.P. Excise Act. 1910, by a First Class-Magistrate on 26-10-1967. The very detailed recovery Memo (Exhibit Ka. 2) dated 27-10-1967 was signed by as many as six witnesses, in addition to having been signed by the officer who conducted the search and by the appellant himself. In this Memo. in the column for remarks, the results of the test report of the liquor is given as follows:

"Test report of the liquor. The contents of all the five (paper torn) of dirty white colour like (paper torn) characteristics smell of the (paper torn) Hydrometer test is as under (paper torn.)

Drum No, 1-77 F x 13.2-50-9 O.P

Drum No, 2-77 F x 13.4-50.7 O.P

Drum No, 3-76 F x 13.8-50.6 O.P

Drum No, 4-76 F x 14.2-50.2 O.P

Drum No, 5-77 F x 13.6-50.5 O.P

Hence the contents of each drum are liquor of O. P. strength".

5. Two questions have been raised in this case for our consideration Firstly 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, secondly, whether the Excise Inspector could be considered an whose opinion about the nature of the liquid found was opinion evidence admissible under Section 45 of the Evidence Act?

6. It will be seen from the statement of the appellant under Section 342, Criminal Procedure Code that he had professed ignorance about the nature of the liquid recovered from the room of the house in which he was found. The false defence taken, that he was not present at the house in question when it was searched could indicate that he wanted to keep his distance from the recoveries made as he was aware of their incriminating nature. Moreover, the appellant who was an employee in a liquor shop, could not be so ignorant about the nature of the liquid recovered as not to be able to raise the question before the Trial Court that the liquid under consideration was not "liquor" as defined by the Act. In the Trial Court, he examined a number of witnesses to substantiate his plea that he was not present at the house from which the recove