The court clarified the legal principles governing the elements of conscious possession of illicit liquor and distilling apparatus under Section 4 of the Assam Liquor Prohibition Act, 1952, the admissibility of chemical examiner's reports without the need for the chemical examiner to testify, and the availability of probation for offenses under the Act.

This revision is directed against the judgment and order dated 6. 1. 83 passed by the learned Sessions Judge, Nowgong.

2. Briefly, the facts are that the petitioner was prosecuted for having committed offence under section 4 of the Assam Liquor Prohibition Act, 1952, hereafter the 'Act', on the allegations that on 23. 11. 78 at about 7 A. M. when K. R. Laskar, Inspector of Excise, hereafter referred as the 'Inspector' conducted search of the petitioner's residential house and its compound in village Sutahaybargaon in his and the presence of the witnesses, a drum and two tins containing about 50 kgs. of 'fermented wash' were found in the compound of the house of the petitioner. A bottle con­taining about 750 ml. illicit distilled liquor and distilling apparatus from the backside of th6 petitioner's house were also found which were seized and later sample of liquor seized was sent for chemical examination. The Chemical Examiner (Excise) reported that the sample was 'alcoholic liquor'. The prosecution examined three witnesses including the 'Inspector'. The defence plea was of total denial. The learned trial Court found, the petitioner had committed the offence punishable under section 4 of the Act, and accordingly sentenced him to rigorous imprisonment for six months and a fine of Rs. 500/-. In appeal, the learned Sessions Judge upheld the findings of the learned trial Court and dismissed the appeal.

3. Sri S. N. Bhuyan, learned counsel for the petitioner has submitted that it was not proved that any liquor had been found from the residence of the petitioner, that it was not proved that the 'material' seized was liquor for the sample was sent for examination after considerable delay, with the result that due to termination increase in alcoholic strength, could take place, that the witnesses for the prosecution were not reliable and it was not proved that the search had been conducted in the manner required, that the aforesaid articles were stated to have been recovered from the compound of the petitioner did not -mean that, the same had been in conscious possession of the petitioner, i. e. the probability that the same had been kept there by somebody else could not be excluded and finally that the petitioner should be given benefit of probation under section 360 of the Code of Criminal Procedure, hereafter the Code.

4. Sri B. B. Narzary, learned P. P. has refuted the submissions for the petitioner, and has submitted that the material was proved to have been illicitly distilled liquor and distilling apparatus had been recovered from the compound of the house of the petitioner and there was no suggestion that somebody else could have kept it in the compound of the petitioner, that therefore when on search on the aforesaid day and time by the Inspector, the aforesaid articles had been recovered from his possession, the petitioner could not disown liability for the same, Sri Narzary has also submitted that the slight delay in sending the sample for chemical analysis could not make any difference to the fact that the material seized was alcoholic liquor and in any case the fact that the distilling apparatus had also been recovered in itself would constitute offence punishable under section 4 of the Act and hence even if it is accepted for the sake of argument that the fermented wash and liquor be excluded from consideration, the recovery of distilling apparatus from the compound of the petitioner was itself an offence punishable under section 4 of the Act, and so any infirmity in regard to the chemical analysis report would not make any difference.

5. I have considered the submissions for the parties and the materials on record

6. The Courts below have on appreciation of evidence, held that the evidence for the prosecution was reliable, and that it was established that on the aforesaid day, time and place, on search made by the Inspector, a drum and two tins containing fermented wash, a bottle containing some liquid and distilling apparatu

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