The prosecution must adduce sufficient evidence to prove its case beyond a reasonable doubt, and a smell test alone is insufficient to establish the offense of possessing contraband liquor.

JUDGMENT-The original accused Nos. 1 and 3 are challenging their convictions and sentences of rigorous imprisonment under S. 66(1) (b) of the Bombay Prohibition Act.

2. In view of certain information that liquor was being transported, a private car No. BMZ-5430 was stopped on Dr. Ambedkar Road near Duke Restaurant by the police on November 21, 1964. The two appellants and accused No.2 Ramji were in that car. One gunny bag each was kept on the front seat and the back seat of the oar and each of the gunny bags contained two bladders containing some liquid. Panchas were called and the gunny bags with the bladders therein were seized.

3. These facts were established by evidence and were not disputed before me.

4. The case for the prose out ion was that accused No. l Narbhaisingh, who was driving the car, and accused No.3 Jagjitsingh, who was sitting by his side, and accused No.2 Ramji, who was sitting at the back seat, were in possession of contraband liquor which was kept in the bladders in that car. They were, therefore, guilty under S. 66 (1) (b) of the Bombay Prohibition Act.

5. After the prosecution evidence was over, accused No.1 admitted that the gunny bags containing bladders were found in the car, but alleged that they were brought by accused No. 2 Ramji. Accused No. 2 Ramji claimed that he was engaged as a coolie and stated that accused No.3 had brought the liquor in that car driven by accused No. 1. He pleaded guilty to the charge and prayed for mercy. Accused No.3 Jagjitsingh admitted that he was in the car but denied that there was any liquor therein.

6. The prosecution examined police constable Sukhdeo (P. W. 1) and the panch Narayan (P. W. 2) who proved the seizure of the contents of the car and the fact that samples of the liquid in the bladders were taken. They also stated that they smelt the contents of the bladders and found them to be illicit liquor. Acting on this evidence, the learned trial Magistrate Convicted all the three accused under s. 66 (1) (b) of the Bombay Prohibition Act and sentenced the present appellants, accused Nos. 1 and 3, to rigorous imprisonment for four months each, while sentencing accused No.2 Ramji, to rigorous imprisonment for two months. Accused No.2 has not filed any appeal.

7. I was taken through the entire evidence in the case by the learned advocates for the parties. The claim of police constable Sukhdeo (P. W. 1) and of the panck Narayan (P. W. 2) that the oar was stopped and four bladders containing liquid were found was not questioned by Mr. Sardar, advocate for the appellants. He, however, contended that the prosecution had failed to prove that the samples taken from the bladdera were sealed or were sent to the Chemical Analyser and had also failed to adduce evidence of the opinion of the Chemical Analyser to show that the bladders contained liquor. In his opinion, the statement of the two witnesses that the liquid in the bladders smelt of liquor was not at all sufficient to establish the offence beyond a reasonable doubt. Mr. Dalvi, Assistant Government Pleader, did not dispute that the prosecution would have done well to produce the report of the Chemical Analyser, but he submitted that the evidence of the constable and the panck that they found from the smell of the liquid that it was liquor ought to be accepted as clinching and convincing because of their experience and because of the fact that it was corroborated by the first information report. He also submitted that their versions were not subjected to any cross-examination by the accused and, therefore, the prosecution case should be held to be proved.

8. When the samples of the contents of the rubber bladders were said to be taken, the prosecution ought to have adduced evidence to show that the samples were sealed and were properly sent to the Chemical Analyser and that the Chemical Analyser had certified that the liquid was contraband liquor. Surprisingly, however, none of this evidence was produced. It is difficult

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