In order to prove that a seized liquid is illicitly distilled liquor, the prosecution must produce evidence that the liquid was tested by an experienced and specially trained officer using reliable methods. The blue litmus and hydrometer tests, when conducted by experienced and specially trained officers, are not conclusive proof of the liquid being illicitly distilled liquor.

JUDGMENT :

L. Rath, J. - The petitioner having been convicted u/s 47(a) of the Bihar and Orissa Excise Act and sentenced to Rl for one year and fine of Rs. 500/-, in default to undergo Rl for two months more, which conviction and sentence have also been confirmed in appeal, has preferred this revision. The prosecution was launched against him with the allegation that while the S. I. of Excise (PW 2) was on patrol duty on 28-8-1988 at about 5.15 a. m. on public road at Ambagada, he found the appellant transporting 100 litres of illicitiy distilled liquor. The liquor was being carried in two plastic jerricans and eight bladders in for gunny bags. The petitioners being intercepted, the liquor with the containers was seized and tested with blue litmus paper and hydrometer. The plea of the petitioner was one of complete denial and to have been falsely implicated in the case. Three witnesses were examined on behalf of the prosecution of which PW 1 was the seizure witness who did not support the prosecution and was permitted to be cross-examined. PW 2 was the S. I. of Excise and PW 3 was the Excise Constable. Both the Courts relied upon the version of the departmental witnesses and found the petitioner guilty. The substantial question urged by the learned counsel is of the seized articles having never been proved to be illicitly distilled liquor. The submission of Mr. Misra is that neither the blue litmus paper test where blue litmus turns red nor the hydrometer test is the surest test to find the liquid to be illicitly distilled liquor and unless chemical test is held, which was admittedly not dona in the present case, the seized liquid could never be conclusively said to be illicitly distilled liquor, It is his submission that blue litmus turning red only shows the liquid tested to be acidic in nature and hydrometer test at the most shows the specific gravity of the liquid. Both such tests taken together do not establish the liquid to be unmistakably illicitly distilled liquor It is the further submission that mere statement by PW 2 of his having carried out hydrometer test is not enough and that the process by which the hydrometer test was conducted and whether he was qualified to conduct the test are to find place in the evidence. Unless PW 2 was able to satisfy the Court of his being an expert in the matter, his mere version that he had carried out the tests would not warrant a conviction. Developing the submission Mr. Misra, also urges that it is possible to conceive that other liquids have the same specific gravity as illicitly distilled liquor.

2. Such submissions of the learned counsel for the petitioner are stoutly refuted by the learned Additional Government Advocate who has relied upon a number of authorities of this Court that where the S, I. of Excise is an experienced person and states to have carried out both the litemus as well as the hydrometer tests, his version that the seized liquid was illicitly distilled liquor is to be accepted at its face value and the conviction made upon such evidence can in no way be found fault with. According to him. a chemical analysis of the liquid is not sin qua non for testing the liquid. Since there are quite a number of authorities of this Court and one decision of the Punjab and Haryana High Court reported in The State of Haryana Vs. Redhey Shyam, bearing on the question and the issue has been contested by the learned counsels, it Is necessary to go into the decisions individually. The first decision relied Upon by the learned Additional Govt. Advocate is 26(1960) CLT 620 Dhobei Charan Meher v. State wherein Chief Justice Narasimham held that there are various methods of testing liquor with a view to find out as to whether it is outstill or illicitly distilled liquor, the most common test being litmus test. In that case the test had not been carried out for which the prosecution was held to have failed to prove the case against the accused. The next case cited is 26(1980) CLT 307 Sa