( 1 ) THIS is an application in revision by one Gobardhan who has been convicted under see-tion 60 (a) and (f) of the Excise Act by a first class Magistrate of Bareilly and has been sentenced to six months R.. and a fine of Rs. 200/- under Sub-clause (a) and to six months R.. and a fine of rs. 200/- under Sub-clause (f); the sentence of imprisonment being concurrent. His conviction and sentence was affirmed, in appeal, by the learned Sessions Judge, Bareilly.

( 2 ) IT appears that on 28-9-1952, at about 6. 45 a. m. the house occupied by the present applicant and his brother Jiwan and nephew, Kesari was searched by the Excise Inspectors, Sri M. L. Ehattacharya, and Sri Rampat Ram Srivastava accompanied by cer-tain witnesses. . The applicant was in possession of the upper storey in the nouffe and Jiwan and Kesari were living in the lower storey. On a search of the upper storey, which was in possession of the applicant, a brass vessel (Ex 3) containing illicit liquor and some apparatus for the dostillation of illicit liquor consisting of a cherua, a tasla and a Handi were recovered. The illicit liquor in the brass vessel (Ex 3) was poured into eight bottles which were packed and sealed. Besides the above recovery, four bottles of illicit liquor are said to have been recovered from the lower storey which was in possession of Jiwan and Kesar. One out of these twelve bottles was sent to the Chemical Examiner for the examination of the contents but it is not clear whether this bottle was out of the eight bottles said to have been recovered from the possession of the applicant or out of four bottles which were recovered from the possession of the other two accused.

( 3 ) THE accused denied the alleged recovery and pleaded that they had been falsely implicated.

( 4 ) THE learned Magistrate after a consideration of the prosecution evidence was not satisfied that any illicit liquor was recovered from the possession of the accused Jiwan and Kesar. He, therefore, acquitted them. As regards the applicant he believed the prosecution evidence that the brass vessel (Ex 3) containing illicit liquor and the apparatus for distillation, specified above, were recovered from his possession. He, therefore, convicted and sentenced him, as above.

( 5 ) IT has been contended on behalf of the applicant that there is no satisfactory evidence on the record that what was recovered from the possession of the applicant was illicit liquor. The only evidence on this point is of Sri Rampat Ram Sri-vastava, Excise-Inspector. It appears from his evidence that the content of the brass vessel (Ex. 3) which was recovered from the upper storey and which was in possession of the applicant, was transferred to eight bottles which were packed and sealed in his presence and were later on sent, to Malkhana. It does not appear from his evidence that he examined the contents of these bottles in order to find out whether it was illicit liquor or something else. It also does not appear from the record that anyone of these eight bottles was sent to the Chemical Examiner for examination and that the Chemical Examiner reported that it was illicit liquor. The question which arises for consideration is whether the evidence of Sri Rampat Ram Srivastava, that the contents of the brass vessel (Ex. 3) or of the eight bottles was illicit liquor, is legal evidence in order to prove this fact in absence of any examination of it by him. There is no doubt that an Excise Inspector is an expert on the question whether a certain liquid is illicit liquor or not but before he is in a position to give such an opinion as an expert he has to examine it and has also to furnish the data on which hi; opinion is based. In the case of ramkaran Singh v. Emperor, AIR 1935 Nag 13 (A), it was held that no doubt the Excise inspector was an expert in his own department and was able to distinguish liquors but the court should under Section 51 ascertain the grounds on which his opinion was base