Orissa High Court
Suma Das vs State Of Orissa on 30 July, 1993
Equivalent citations: 1993(II)OLR392
JUDGMENT L. Rath, J.
1. The petitioner having been convicted Under Section 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 1977 Cri LJ 528, The State of Haryana v. Radhey 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, Sainta Putani v. The State, wherein relying upon the earlier case the same Chief Justice again held that there were various methods of testing liquor as prescribed in the Excise Manual but the tests had not been applied and there was no evidence except the evidence of the Excise S. i. that except smell there was no other data on which he could say that it was outstill. The conviction and sentence in that case were set aside. The present, case was adjourned for giving opportunity to the learned Additional Government Advocate to point out the various tests prescri- bed in in the Excise Manual as was observed by Narasimham, C, J. but it is candidly submitted by him that in that Excise Manual no such tests are provided for. According to him. usually the tests applied are the litmus and hydrometer tests though he canoeded that the chemical test is the best test. It is however his submission that chemical test is not always resorted to and is not also possible to be adopted always because it is a time consuming and costly process,
3. The next decision is 47(1979) CLT 113, Khetramohan Nayak v. State of Orissa where Hon'ble Justice J. K. Mohanty, he!d, relying upon 1977 Cri LJ 528 (supra) which I would have occasion to refer to later on, that where the only evidence was of the hydrometer test wherein the liquid as found to be 75.5 UP and it had not been sent for chemical examination which is the surer test, the seized material could not be positively said to be outstill as the hydrometer test is not an accurate test and tells only about the specific gravity or density of the liquid. It was pointed out that the hydrometer test is also not accepted by the Indian Standard Institution as the surest test. This decision was followed by Hon'ble Justice B. K. Behera, in 55,(1933) CLT 360 Madhu Sundhi v. State of Orissa who however observed that since hydrometer test is not an accurate test, there must be litmus test or other chemical tests. Thus view taken was that apart from the hydrometer test, the other test that could be applied was either the litmus test or the chemical test. In 68(1989) CLT 257, Sukuru Behera v. State Hon'ble Justice A. Pasayat. observed that it is a settled position in law that if hydrometer and blue litmus paper tests are conducted by a specially trained and experienced officer, the results are acceptable and are sufficient for the purpose of trial. In support of the observation reliance was placed on 26(1960) CLT 620 (supra) and 65 (1983) CLT 360 (supra). 26(1960) CLT 307 (supra) or 55(1983) CLT 360 (supra) however made no observation that the hydrometer and blue litmus tests conducted by specially trained and experienced officer would make the result of the test acceptable. But in Criminal Revision No. 3 of 1982 decided on 16-2-1983, Ram Krushna Sahu v. State which decision was referred to by Hon'ble Justice A, Pasayat, in 68(1989) CLT 257 (supra) the proposition of the learned counsel for the accused- petitioner that the seized articles were not C. S. liquor was repelled as the Excise Sub-Inspector had stated that he had conducted the hydrometer and blue litmus paper tests and had 13 years of experience in the department dealing with liquors and had special training on the basis of which he had confirmed that M. Os. I and II contained liquor and nothing else. This case seems to be the starting point to hold that where the tests have been held by an experienced and specially trained officer of the Excise Department and he, holding the litmus test and hydrometer test opines the liquid to be outstill, the Court is to rely upon such evidence. Again in 1339(II)OLR 381, Subash Chandra Panda v. State of Orissa where the seized article was not outstill but foreign liquor and the Excise S. 1. who had completed distillery and P. T. C. training and had 10 to 12 years of experience in the excise department and had been dealing with foreign liquors deposed that from the smell and cork manufacture label on which the strength of the liquor and the name were mentioned, he knew the contents of a broken bottle to be foreign liquor, and the bottle was one of 143 bottles of which all the rest were foreign liquor of different brands. Hon'ble Justice V. Gopalaswamy, held, relying on 63 (1987) CLT 370, Abdul Gaffer v. State of Orissa that the evidence of the excise officer was acceptable to sustain the conviction. In coming to the conclusion it was held that 47(1979) CLT 113 had no relevance to the facts of the case probably because that was a case of outstill. Next is the case decided by Hon'ble Justice J. M. Mohapatra, 70(1990) CLT 747, Bharata Sahu v. State who held, relying on 56(1983) CLT 360 (supra) which had itself relied on 47(1979) CLT 113 (supra) that holding both litmus test and hydrometer test would go to prove that the liquid was illicitly distilled liquor. The proposition that when both the litmus test and the hydrometer test are conducted by a specially trained and experienced officer, it can be relied upon to say that the liquid was illicitly distilled liquor was adopted by Hon'ble Justice B. N Dash, in (1991) 4 OCR 409 Sri Budhuram Singh v. State of Orissa on an analysis of 26(1960) CLT 620 (supra), 55(1983) CLT 360 (supra), 55(1983) CLT (Note) 101 (supra) and 47(1979) CLT 1 13 (supra).
4. Acceptance of evidence of experienced and specially trained excise officers as being qualified as experts to opine regarding the nature of the articles seized was outlined in a case of non duty paid Ganja by Hon ble Justice G. B. Pattnaik, in 63 (1987) CLT 370 (supra). Distinguishing a decision of the Madhya Pradesh High Court reported in 1978 Cri.LJ 1218. Deosingh v. The State of Madhya Pradesh His Lordship held that though the evidence, of an Excise Inspector who had never smoked Ganja and had not known different types of Ganja may not warrant acceptance of his evidence of the seized article being Ganja, yet when an experienced excise officer says from the smell as well as texture that the seized article was Ganja, the evidence could be accepted without any analysis. This decision however in deciding as such did not take into consideration the earlier decisions of this Court in 58 (1934) CLT 388, Radheshyam Jena alias Mohapatra v. The State and 1986 (I) OLR 576, State of Orissa v. Lokanath Sahu and Anr.,both decided by Hon'ble Justice Dr. B.N. Misra. The first case had held, relying on 31 (1965) CLT 172. The State v. Satyanarayan MalIick that where the seized article was merely stated to be non-duty paid Ganja, it was not acceptable evidence if the article had not been sent for chemical examination and that by a mere verbal statement it could not be determined whether the seized article was duty-paid or non- duty paid Ganja. The later case,1986(l)OLR 765 (supra) had held, where the prosecution was for possession of Bhang, that in the absence of chemical examination it was to be held that there was no proof of the seized article being non-duty paid Bhang, It is of course true that while deciding the case in 63(1987)CLT 370 (supra) though nothing was said regarding the effect of the article having not been sent for chemical examination, yet a new view was adopted that where the opinion is expressed by an experienced excise officer, his opinion can be accepted. Prior to such decision it has already been held in Criminal Revision No. 3/82 (supra) that where both the hydrometer and blue litmus paper tests had been made and the officer conducting the tests was experienced and was specially trained, his evidence was acceptable. The two other cases which need reference are 64 (1987) CLT 763, Karpura Senapati v. State, the judgment of the Hon'ble Mr. Justice S. C. Mohapatra, who held that there was no bar in the Act to prove otherwise than by chemical analysis that an article is intoxicant drug, that it is true that chemical analysis is a surer test and a Court of fact in a given circumstance may draw adverse inference by rejecting other evidence on record that it has not been proved that the article possessed is not (?) intoxicant drug, that whether the article is an intoxicant drug would depend on the facts proved and the explanation of the accused Under Section 313 CrPC, and that the chemical analysis is not a sine qua non to find the nature of the article possessed. This was followed in 1991 (II) OLR 169, Ramsis Prasad v. State that in the absence of chemical examination the Court can come to conclusion on the basis of other evidence available on record as to whether it is excisable article or not. The last case relied upon is 73 (1992) CLT 28 Subodh Sethi and Anr. v. State, where the Hon' ble Mr. Justice A. Pasayat relied upon the evidence of the excise officer to accept the seized liquid as illicitly distilled liquor since both the blue litmus and hydrometer tests had been done by an officer who had 22 years of experience as an excise officer and had undergone training in the line.
5. A resume of the different authorities of this Court will show that though in principle the Court has accepted chemical test to be the surest test to establish the character of the seized article as illicitly distilled liquor, yet the view has been adopted that in the absence of such test, other evidence is admissible to reach the same conclusion and that where both the litmus and hydrometer tests are done by experienced and specially trained officer, opinion of such officer is acceptable to establish the identity of the seized article as illicitly distilled liquor.
6. The evidence of an experienced and specially trained officer can however be accepted only as expert evidence as contemplated Under Section 45 of the Evidence Act That section requires inter alia that the opinion of only persons specially skilled in the relevant science or art is acceptable as expert evidence. Hence unless an excise officer shows that he has special skill which may be resultant upon special training in the line, he would not be acceptable as an expert. The necessary conclusion must be that a mere statement that one has served in the excise department for number of years either as an Inspector or Sub-Inspector would rot ipso facto qualify him as an expert unless it is further shown that he has been specially trained for the purpose or has acquired special skill in the matter so that he could be rightfully termed an exoert. The words were specifically used in the first decision in the line, Criminal Revision No. 3/82 (supra). It is possible to conceive that the entire duty period of the officer concerned may have been confined to desks in the office and he not having received any special training. The learned Additional Government Advocate submits of his having received instructions that in these days all excise investigating staff are being specially trained as chemical test has become costly. If that is so, it is essential that the fact of having received such special training is to be let into evidence-so that the Courts can rely upon their evidence as expert evidence. Short of that, a mere statement that an officer who is working in the department for a number of years would not qualify him as an expert within the ambit of Section 45 of the Evidence Act.
7. Next comes the question of the type of test conducted. It is well known that blue litmus turns red when it comes in contact with an acidic substance. Pure alcohol is neither acidic nor alkaline but when alcohol is illicitly obtained in uncontrolled conditions, it has a high tendency of acidity resulting from crude and dirty process of manufacture and prolonged fermentation. Because of its acidic nature, if turns blue litmus red when dipped into it. Hence the blue litmus test only shows the liquid to be acidic and no more. So far as the hydrometer test is concerned, it is a test only to show the density of the liquid. The Technical Excise Manual of J.S. Pillay shows (page 122, 1990 edn.) that the strength of diluted liquor raised from 75° to 73° UP and the average may be taken at about 85°. While illicitly distilled liquor may have a particular density or may have a range of density, a mere fact that the seized article when put to hydrometer answers the density of illicitly distilled liquor or fits into the range of density of illicitly distilled liquor, would by itself not unmistakably show that the liquid is illicitly distilled liquor. It is possible to conceive that other liquid may have also the same density. Thus the combined effect of blue litmus and hydrometer tests would show that the liquid is acidic in nature and the density is similar to that of illicitly distilled liquor. But both such tests put together would not avoid the possibility that the liquid is not illicitly distilled liquor. To supplement such tests there hence is necessity of the liquid being tested by an experienced and specially trained officer who along with the tests conducted is able to testify either from other tests or from the smell and teste or from both or all that the liquid is illicitly distilled liquor. Hence all such factors are necessary to be gone into before the fact can be taken to have been established. Again speaking of hydrometer test the very mode and manner of its conduct becomes important. The matter was gone into in detail in 1977 Cri. LJ 528 (supra). The evidence in that case before Their Lordships was that when the liquid was examined by means of a hydrometer set the mercury rose 410. It was held that the witness did not say as to what was the temperature of the liquid and that from the rising of the mercury of the hydrometer set to a certain degree one cannot jump to a conclusion that the liquid he is testing is liquor. The Court also found fault with the type of hydrometer set that had been used. It was noted that there are three types of hydrometer sets and in Punjab and Haryana the field excise staff usually use single stem glass Hydrometer sets to know the density or specific gravity of alcoholic liquids. Before the hydrometer is put into the jar, the temperature of the liquid is taken with a thermometer after making it homogeneous and thereafter the strength of the spirit is calculated with the help of the Sike's tables for glass hydrometer. Those tables as corrected by Lt. Col. Bedford are used for measuring the strength. In "Technical Excise Manual" 1969 Edition at page 70 in paragraph 133 the importance of the temperature of the liquid was explained as follows :
"The temperature of the liquor is most important. Liquids expand when heated and contract when cooled and so their specific gravities are increased by cold and lessened by heat. If, for example, the matter of the liquid's temperature were to be neglected, a spirit tested in the cool of the early morning would appear to have' increased in strength when retested in the heat of midday.
The temperature of the hydrometer itself must not be neglected. If a stem be placed in a liquor cooler than it is, the stem will tend to rise or fall and must therefore be left in the liquor until it has had time to become of the same temperature as the liquid. Otherwise a hydrometer stem which was warmer than the liquor in which it was placed would show a less alcoholic strength then it ought to do.
Sike's hydrometer was originally graduated at 51 o Fhr. That is therefore the temperature at which Sike's hydrometer has been constructed to give exact indications. But to enable liquors to be proved at all ordinary temperatures, tables have been constructed (Sike's Tables, which show directly the spirit strength corresponding to any stem reading at any temperature between 40o and 100o F. So that, by taking the liquor's temperature by means of the thermometer and looking up the tables at the temperature shown and then observing the reading of the hydrometer, the alcoholic strength of the liquor can at once be read off."
Taking note of the observations, their Lordships held that this method of testing liquor is not fool-proof and these are of help in the distilleries where it is sure that the liquid requiring testing is nothing but liquor or spirit, that this test cannot be infallible where the nature of liquid is not certain before testing and that even the Indian Standard Institution(I.S.I.) does not accept the hydrometer test as a sure test.
8. No doubt it is true that the menace of illicitly distilling of liquor is a fact which is gravely injurious to the society but before the liberty of a man is deprived of on such ground, it is necessary that the offence alleged against him must be established conclusively. It is the paramount duty of the excise personnel to see that the prosecutions are well-launched on the basis of proper investigation. There is absolutely no reason as to why this minimum cannot be done so that the offenders are not let off, It has been repeatedly held by this Court that though chemical test not a must always, yet the test must be conducted by experienced and specially trained officers. It is high time that the department takes note of such fact and brings on record the evidence relating to the experience in the line and the nature of the special training imparted to the testing officer as also the nature and manner of the tests conducted. Bereft of that the prosecution would run the risk of failure. Coming to the present case I find that the only evidence is that of PW 2, the Excise S.I. who stated that he examined the liquor by blue litmus paper colour of which turned red and he also conducted the hydrometer test and found the strength of liquor 50.0° up, indication 80.0° and 85.0° up. He also conducted smell test and from the tests and from his six years' departmental experience, he opined the contents to be illicitly distilled liquor. There is no evidence as to what type of experience he had and there is absolutely no evidence if he had received any special training to conduct the tests. There was also no evidence of the manner and procedure of hydrometer test conducted. As such it is not possible to accept his evidence as that of an expert, For such reason, the petitioner becomes entitled to acquittal in the case.
9. In the result, the revision is allowed and the conviction and sentence of the petitioner are set aside. Copy of the judgment be circulated to the Excise Department in the State Government and to the Commissioner of Excise.