The prosecution must prove that the material recovered from the accused was liquor. The Hydrometer test is not a sure test for determining the nature of a liquid.

1. Radhey Shyam respondent was tried under Section 61 of the Excise Act for being in possession of 21 bottles of liquor, at 3.00 A.M. on 31-7-1971, in the area of village Kanti, district Mohindergarh. After trial he was acquitted by Shri N.K. Jain, Judicial Magistrate Ist Class, Narnaul vide his judgment dated 21-6-1972. The State of Haryana has challenged the order of acquittal through this appeal.

2. The case of the prosecution is that on the night intervening 30th and 31st July, 1971, Assistant Sub-Inspector Sis Ram of Police Station, Ateli, District Mohindergarh in the company of Ombir (P.W.1) and Bishan Singh (P.W.2) set an ambush in the area of village Kanti on the Kacha road leading to Talwara. At about 2.00 A.M. The respondent approached the place where the police party was lying in ambush. The respondent was carrying a bundle on his head. He was secured and on search of the bundle a rubber bladder containing 21 bottles of liquor was recovered. The bladder was sealed and taken into possession vide memo, Exhibit P.A. Ruqa Exhibit P.B was sent to Police Station Ateli where formal first information report, Exhibit P.B./1 on its basis, was registered Shri D.K. Palta, Excise Inspector on 29-10-1971 examined the contents of the bladder. From the smell, taste and examination with the help of Hydrometer set, he formed an opinion that the contents of the bladder were liquor. On the report of the Excise Inspector the respondent was prosecuted in the Court of Shri N.K. Jain, Judicial Magistrate Ist Class, Narnaul, Sarvshri Ombir, Bishan Singh and Assistant Sub-Inspector Sis Ram P.Ws. deposed about the setting of the ambush the arrest of the respondent and the recovery, of the bladder from his possession. They also deposed about the sealing of the bladder. Shri D.K. Palta Excise Inspector (P.W.4) proved his test report and deposed in Court that from the taste, smell and examination with the help of the Hydrometer set he found the contents of the bladder to be liquor. When examined under Section 342, Criminal Procedure Code (1898), the respondent denied the case against him. He examined in defence Umed Singh (D.W.1) and Parbhati (D.W.2) residents of Kanti near whose fields Assistant Sub Inspector Sis Ram had arrested the respondent. They deposed that in the month of Asar and Sawan of that year no one was arrested by the police near their fields.

3. The learned trial Magistrate held that none of the prosecution witnesses stated if the bladder was emptied to measure its contents at the time of its recovery and yet the quantity in the bladder was mentioned as 21 bottles in the seizure memo, Exhibit P.A. as well as in the memo, Exhibit P.B sent to Police Station Ateli for registration of the case. The case of the prosecution is that the bladder remained sealed till its examination by Shri D.K. Palta on 29-10-1971. The learned trial Magistrate disbelieved the prosecution witnesses holding that they could not know the exact quantity of the liquor contained in the bladder. It was also held that the prosecution witnesses were under the influence of the police. On these grounds the learned trial Magistrate passed the order of acquittal.

4. The learned trial Magistrate did not read the evidence carefully. It is to be found in the statement of Ombir (P.W.1) that at the time of arrest when the respondent gave his name and address he also disclosed the quantity of liquor in the bladder as 21 bottles. On this point of mis-reading of evidence by the learned trial Magistrate we would have set aside the judgment of acquittal but we are not inclined to do so in view of another point viz. failure of the prosecution to prove the material recovered from the respondent to be licit or illicit liquor.

5. The prosecution admittedly did not send the sample from the contents of the bladder to the Chemical Examiner. In such cases the chemical analysis is always the surer test to declare as to what the commodity actually recovered from the accused is.