Examination of at least one Mahazar witness necessary and desirable.

The petitioner was convicted by the Sub-Magistrate of Villupuram of an offence under section 4 (1) (a) of the Madras Prohibition Act for transporting liquor bottles, of which eight were half bottles of Highland whisky, four half bottles of Koday’s old whisky and four half bottles of Sovereign pure brandy, from Pondicherry to Villupuram. The case for the prosecution was that at 10-20 p.m. on 13th July, 1961 the Sub-Inspector belonging to the Villupuram Railway Police was watching for prohibition offences at the Villupuram Railway Station platform. At the time, he stopped the petitioner and on suspicion searched him with the result that he was found to have a bag containing the bottles of whisky and brandy. Along with the bottles was seized also a third-class Railway ticket from Pondicherry to Villupuram. According to the prosecution, a mahazar was prepared attested by two witnesses for the seizure of the bottles of whisky and brandy, as also the Railway ticket. The only evidence on which the prosecution sought to prove the case, was that of the Sub-Inspector of Police. Both the Courts below accepted his evidence and convicted the petitioner as aforesaid.

On behalf of the petitioner, three points have been raised in this Court. One is that the prosecution has failed to establish beyond doubt in this case that the contents of the bottles were whisky and brandy. It appears from the cross-examination of the Sub-Inspector of Police that the petitioner challenged the nature of the contents of the bottles. The Sub-Magistrate, notwithstanding the challenge by the petitioner, did not have the contents of the bottles analysed in order to satisfy himself that they were whisky and brandy. Instead, what the Sub-Magistrate did was himself to open the bottles, examine the contents and satisfy himself that they were bottles of whisky and brandy. This is how the Sub-Magistrate dealt with the point:

“ Learned counsel for defence cast a doubt on the contents of M.O. 2 to 4 series bottles as to whether they are liquor at all. The bottles were fresh ones with the company seal intact and label on them showed that they contained whisky and brandy. In view of the doubt raised by the learned counsel for the defence, these bottles were all opened in open Court and their contents were examined by me, and I am quite convinced that the contents of these bottles are whisky and brandy as their labels indicate and there is no doubt whatever about this and no expert opinion or chemical test is necessary to show this, which is so very patent from the appearance of strong smell of the contents.”

In a later part of the judgment the Magistrate states that the brandy and whisky have been destroyed after examining them in Court, and that only empty bottles were confiscated to the State. It will be seen, therefore, that the Sub-Magistrate purported to draw a presumption as to the contents of the bottles being whisky and brandy not only from the seals in the bottles being intact and the labels on them, indicating that the bottles contained whisky and brandy, but also from his own visual examination of the contents and the smell they emitted.

In cases like this, it is no doubt permissible to draw an inference, under section 114 of the Evidence Act from certain external features and circumstances, like the label and smell indicating the nature of the contents of the bottles, the cork being intact and so forth, that the contents are prohibited liquor. But when a challenge is made by an accused that the contents are not prohibited liquor and that no presumption should be drawn from the external features, it may then be necessary, in order to obviate all doubts at all stages of the case, to have the contents analysed and to put the nature of the contents beyond any possibility of speculation. In particular cases for good reasons, the Court may be satisfied that such an analysis need not be called for. But the reasons should be such as would justify that, in the partic