B.P. Beri, J.
1. By his reference dated November 9, 1968 the learned Sessions Judge, Bikaner, recommends that the judgment of the Sub-Divisional Magistrate, Rajgarh, where-by he convicted Sanwal Ram Under Section 64 (a) of the Rajasthan Excise Act, 1950 but award, ed him only a sentence of fine of Rs. 60/. when the law enjoins substantive sentence, be set aside. The reference further recommends that the learned Magistrate be directed to write the judgment afresh. this Court, however, issued a notice to Sanwal Ram to show cause as to why his sentence be not enhanced. He appears and contests his conviction.
2. The facts which we may notice for the disposal, of this reference are that on January 16, 1965, Excise Inspector. Rajgarh, went to the house of the accused along with 2 witnesses and recovered one full-size bottle of liquid, said to contain liquor, and one half-size bottle which had liquid upto a level of one and half inch. He saw the bottles and found the liquids to be liquor of 60.4 U. P. in the bottle and 48.1 U.' P. in the half-bottle. He stated that the liquor recovered was different from the one which the Government distils. The learned Magistrate found the recovery of illicit liquor proved and sentenced Sanwal Ram aa already mentioned.
3. Mr. R. N. Bishnoi, appearing for the non-petitioner Sanwal Ram, argues that there is no evidence to show that the liquid recover, ed from the possession of Sanwal Ram was an excisable article within the meaning of Section 3 (4) of the Rajasthan Excise Act. The mere statement of the Excise Inspector giving the percentage of the aloohol was an inadmissible opinion. Relying on State of Andhra Pradesh v. Boosenna : 1967CriLJ1398 he urges that in the absence of the scientific evidence no offence was made out against Sanwal Ram, the non.petitioner.
4. Learned Deputy Government Advocate relied on Ramlal v. State, 1956 Raj L W 54, wherein the conviction was maintained even when the commodity recovered was not chemically analysed by any export. When the Excise Inspector's testimony proves that the liquid recovered from Sanwal Ram was illicit liquor, there is no ground for disturbing his conviction contended the learned Counsel,
5. Dealing with a case of prohibition under the A. P. (Andhra Area) Prohibition Act, 1937,(No. 10 of 1937), their Lordships of the Supreme Court after examining the provisions of the Act observed in para 10 that an opinion based on mere smelling by a Prohibition Officer was no satisfactory evidence to establish that the article was one which was hit by the mischief of the term 'liquor' as defined in the Act. Their Lordships observed :
In our opinion, better proof, by a technical person, who has considered the matter from a scientific point of view, is not only desirable, but even necessary to establish that the article seized is one coming within the definition of 'liquor'.
6. Section 3 (8) of the A. P. (An3hra Area) Prohibition Act defines liquor as follows :
Liquor includes toddy, spirits of vine, methylated spirits, spirits, wine, beer and all liquid consisting of or containing alcohol.
7. Sub-section (15) of Section 3 of the Rajasthan Excise Act defines liquor thus:
Liquor means intoxicating liquor and in. eludes spirits of vine, spirits, wine, tari, pachawai, beer and all liquid consisting of, or containing alcohol, as also any substance which the State Government may from time to time by notification in the official gazette declare to be liquor for the purposes of this Act.
8. It is apparent from a reading of these two provisions that they have substantial similarities. The Excise Inspector does not even tell us if he had received any training matter of finding out whether a given liquid was or was not liquor leave alone the method by which he calculated the alcoholic percentage. His evidence, therefore, is in the nature of a bald opinion without there being any indication of the grounds by which we could accept him as an expert. On the basis of the authority of the Supreme Court decision on cited above there is clearly no scientific evidence to warrant the conclusion that the liquid recovered from Sanwal Earn was liquor. Ramlal's case, 1956 Eaj L W 54 (supra) is clearly distinguishable on two grounds. The first ia that the accused had himself admitted in that case that the commodity recovered from him was contraband opium.. Secondly, it was found that the smell of opium led the concerned officer to conclude that it was contraband opium.
9. In the Supreme Court case from Andhra Pradesh A.I.R. 1967 S C 1550 their Lordships have made reference to an earlier decision of the Supreme Court where opium was recovered. That case was Baidyanath Misra v. State of Orissa, Cri. Appeal No. 270 of 1964, D/. 17. 4.1964 (Orissa). After quoting a passage from that judgment their Lordships had distinguish-ed it thus :
These observations will clearly show as to why this Court in past case (cri Appeal No. 270 of 1964, D/. 17.4-1964 (Orissa)) has expressed the view that there is no infirmity in the prosecution case, simply because there has been no chemical analysis made, of the commodity, which according to the prosecution, was opium.
The reason which persuaded their Lordships of the Supreme Court in saying that chemical analysis of opium was not necessary was that it was capable of being 'apprehended by sences'. In our opinion, the percentage of alcohol could not be so calculated with any precision by mere visual observation as it appears to have been done in the case before us. We accordingly hold that there is no evidence on record to show that the liquid recovered from the possession of Sanwal Ram respondent was illicit liquor. His conviction, there, fore, cannot be sustained. He is acquitted of the charge Under Section 54 (a). The fine of Rs. 60/. if it has been paid by him, shall be refunded to him without delay.
10. The reference is rejected.