Kulwant Singh Tiwana, J.
1. Badhey 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 1st 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 1st 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 baldder 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 baldder 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. In place of doing so the prosecution got the contents of the bladder examined from Shri D.K. Palta Excise Inspector and projected him as an expert witness to say that whatever he had examined was liquor. Shri D.K. Palta did not put the contents of the bladder to any laboratory test. He applied two physical tests; the first was that of taste and smell and the second was with the help of a Hydrometer set. In order to style himself as an expert witness he gave his qualifications stating that he was distillary trained and he had put in 13 1/2 years service in the Department. On the basis of this evidence the learned Counsel appearing on behalf of the State wants us to accept that the contents of the bladder were proved to be liquor of illicit origin.
6. So far as the experience of Shri D.K. Palta (P W 4) in testing is concerned his statement is extremely unsatisfactory. He did not spell out the training which he had received at the Distillary. He did not state whether he was associated with the distillation of liquor the chemical analysis of this commodity or any method of testing liquor. Unless the type of training received by Shri D.K. Palta at the Distillary was stated by him specifically it is difficult for us to accept that he had received any such training which had given him sufficient proficiency to examine liquor and declare it to be so with definiteness. His contention to show experience of testing liquor by the length of his service is also equally unsatisfactory. It is not known from the record in what branch of the Excise Department he had put in service; whether he remained on office duty, field duty or, in the branch of the Excise Department which is directly connected with the testing of liquor. Such a vague statement without any particulars of training or type of service does not make the person an expert witness. The prosecution has to prove that the training or length of service was directly connected with the test of liquor.
7. The prosecution had to prove in this case as a positive fact that the contents of the bladder were nothing else but licit or illicit liquor. The examination of a liquid with the help of a Hydrormier set is not an accurate test. The Hydrometer set tells only the specific gravity or density of the liquid in which that instrument is put. Shri D. K Palta stated that when the liquid was examined by means of a Hydrometer set the mercury rose to 41, He did not state what was the temperature of the liquid. His report also does not show it. It means he did not take the temperature. 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. Shri D. K Palta did not state what type of Hydrometer set he had used. There are normally three types of Hydrometer sets. 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. Then the specific gravity of the liquid is taken. Thereafter the strength of the spirit is calculated with the help of the Sike's tables for glass hydrometer. These 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 is explained as -
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 re-tested 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 fail 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 than it ought to do.
Sike's hydrometer was originally graduated at 51 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 (Sikes's Tables) which show directly the spirit strength corresponding to any stem reading at any temperature between 40 and 100 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.
This method of testing liquor is not foolproof. These are of help in the distilleries where it is sure that the liquid requiring testing is nothing but liquor or spirit. This test cannot he infallible where the nature of liquid iis not certain before testing. Shri D.K. Palta (PW 4) did mot adopt this test fully. He did not take the temperature of the liquid before giving the specific gravity which was necessary. His test being very perfunctory cannot be given any consideration.
8. Even the Indian Standard Institution (LS.I) does not accept the Hydrometer test as' a sure test. In its publication 'Indian Standard Specification for ordinary Denatured Spirit' (IS. 324-1959) in Appendix B. Clause 43 (at p. 13) it is contained 'B-2-1. The specific gravity may be determined by means of a pyrometer or a specific gravity bottle, or a special hydrometer, such as Sikes' A and B hydrometers; for accurate work, the method using specific gravity bottle (see B-3.1) shall be adopted.' At B-3.1 the diagrams of the specific gravity bottles have been given. This shows that for accurate work Hydrometer set is not. indicated by the Indian Standard Institution. From whatever angle it may be viewed the Hydrometer set is not a very sure test. In these days when the facilities of chemical analysis are available it is neither prudent nor safe to depend on such test which is considered unsafe and not considered sure by the I.S.I. In the tests of liquor the absence of furfurol copper and iron is important. The strength of volatile acidity and total acidity is also very relevant. These, cannot be ascertained without a chemical test. Unless a proper test is conducted the prosecution cannot legitimately ask the Court to accept its case that whatever was recovered from the accused was liquor. The smell and taste too are insufficient to hold that the material was liquor. The prosecution has in any case to rule out the possibility that the material recovered from the accused was only that for which he is being charged and nothing else. Shri D.P. Palta (PW 4) in testing physically the material sent to him by the police did not even carry out the Hydrometer test in proper manner. His testimony which has been styled by the prosecution as an expert evidence cannot be accepted.
9. The prosecution has failed to bring its case within the ambit of Section 61 of the Excise Act. In spite of the fact that we do not agree with the conclusion of the learned trial Magistrate on merits of the evidence we are not inclined to disturb the findings of acquittal because of the failure of the prosecution to prove that the contents of the bladder were liquor. The appeal is, therefore, dismissed.