JUDGMENT-The original accused Nos. 1 and 3 are challenging their convictions and sentences of rigorous imprisonment under S. 66(1) (b) of the Bombay Prohibition Act. 2. In view of certain information that liquor was being transported, a private car No. BMZ-5430 was stopped on Dr. Ambedkar Road near Duke Restaurant by the police on November 21, 1964. The two appellants and accused No.2 Ramji were in that car. One gunny bag each was kept on the front seat and the back seat of the oar and each of the gunny bags contained two bladders containing some liquid. Panchas were called and the gunny bags with the bladders therein were seized. 3. These facts were established by evidence and were not disputed before me. 4. The case for the prose out ion was that accused No. l Narbhaisingh, who was driving the car, and accused No.3 Jagjitsingh, who was sitting by his side, and accused No.2 Ramji, who was sitting at the back seat, were in possession of contraband liquor which was kept in the bladders in that car. They were, therefore, guilty under S. 66 (1) (b) of the Bombay Prohibition Act. 5. After the prosecution evidence was over, accused No.1 admitted that the gunny bags containing bladders were found in the car, but alleged that they were brought by accused No. 2 Ramji. Accused No. 2 Ramji claimed that he was engaged as a coolie and stated that accused No.3 had brought the liquor in that car driven by accused No. 1. He pleaded guilty to the charge and prayed for mercy. Accused No.3 Jagjitsingh admitted that he was in the car but denied that there was any liquor therein. 6. The prosecution examined police constable Sukhdeo (P. W. 1) and the panch Narayan (P. W. 2) who proved the seizure of the contents of the car and the fact that samples of the liquid in the bladders were taken. They also stated that they smelt the contents of the bladders and found them to be illicit liquor. Acting on this evidence, the learned trial Magistrate Convicted all the three accused under s. 66 (1) (b) of the Bombay Prohibition Act and sentenced the present appellants, accused Nos. 1 and 3, to rigorous imprisonment for four months each, while sentencing accused No.2 Ramji, to rigorous imprisonment for two months. Accused No.2 has not filed any appeal. 7. Acting on this evidence, the learned trial Magistrate Convicted all the three accused under s. 66 (1) (b) of the Bombay Prohibition Act and sentenced the present appellants, accused Nos. 1 and 3, to rigorous imprisonment for four months each, while sentencing accused No.2 Ramji, to rigorous imprisonment for two months. Accused No.2 has not filed any appeal. 7. I was taken through the entire evidence in the case by the learned advocates for the parties. The claim of police constable Sukhdeo (P. W. 1) and of the panck Narayan (P. W. 2) that the oar was stopped and four bladders containing liquid were found was not questioned by Mr. Sardar, advocate for the appellants. He, however, contended that the prosecution had failed to prove that the samples taken from the bladdera were sealed or were sent to the Chemical Analyser and had also failed to adduce evidence of the opinion of the Chemical Analyser to show that the bladders contained liquor. In his opinion, the statement of the two witnesses that the liquid in the bladders smelt of liquor was not at all sufficient to establish the offence beyond a reasonable doubt. Mr. Dalvi, Assistant Government Pleader, did not dispute that the prosecution would have done well to produce the report of the Chemical Analyser, but he submitted that the evidence of the constable and the panck that they found from the smell of the liquid that it was liquor ought to be accepted as clinching and convincing because of their experience and because of the fact that it was corroborated by the first information report. He also submitted that their versions were not subjected to any cross-examination by the accused and, therefore, the prosecution case should be held to be proved. 8. When the samples of the contents of the rubber bladders were said to be taken, the prosecution ought to have adduced evidence to show that the samples were sealed and were properly sent to the Chemical Analyser and that the Chemical Analyser had certified that the liquid was contraband liquor. Surprisingly, however, none of this evidence was produced. It is difficult to understand why the prosecution withheld that evidence. There was consider. able force in the contention of Mr. Surprisingly, however, none of this evidence was produced. It is difficult to understand why the prosecution withheld that evidence. There was consider. able force in the contention of Mr. Sardar that the prosecution withheld that evidence because it was not likely to support their case and, therefore, a presumption should be drawn against them under illustration (g) below s. 114 of the Indian Evidence Act. Mr. Dalvi was trying to explain away the failure to produce the chemical Analysers report on the ground that the committing Magistrate did not wait for the report of the Chemical Analyser because it takes more than six months to get these reports and these cases have to be finished within six months. I am not prepared to accept this so-called explanation for the failure to produce the chemical Analysere report. It is entirely wrong to think that Courts are to hurry up their disposals even without giving a proper opportunity to the prosecution to produce the requisite evidence. If receiving of the chemical Analysers report, which provides clinching evidence, takes time, it would be the duty of the Court to wait for the report and no Magistrate will be justified in hurrying up the trial for the sake of early disposals without waiting for such clinching and important evidence. 9. Mr. Dalvi was also not right in saying that the versions of the two witnesses were corroborated by the first information report exh-C or by the panckanama. The report exh-O did not at all show that the contents of the bladders were smelt and were found to be contraband liquor. The pancknama also did not say that the constable or the panch smelt the liquid in the bladders. The only recital in the panchanama shows that both the football bladders, when opened, were smelling of illicit liquor. It was not clear whether the contents of each bladder were smelt separately or there was a general smell emanating at the place of the seizure of illicit liquor. If the latter were the position, the smell test applied to the case would become extremely doubtful. 10. There was no basis in the evidence for the suggestion that the police constable and for the panch were men of experience or were trained in detecting liquor by mere smell. If the latter were the position, the smell test applied to the case would become extremely doubtful. 10. There was no basis in the evidence for the suggestion that the police constable and for the panch were men of experience or were trained in detecting liquor by mere smell. It would be a very dangerous proposition to convict people for possession of liquor on the basis of the test of smell, whether applied by stray persons or by trained persons. Several other articles could smell like liquor without being liquor. The evidence of a test of smell would be extremely doubtful and cannot be said to be clinching. 11. Mr. Dalvi was supporting the view of the learned Magistrate that the case was established because the version of the witnesses that the bladders contained illicit liquor was not challenged by the accused. It has to be remembered that the accused were not represented by counsel. The mere failure of the accused to cross-examine the bare statements of these witnesses cannot take the place of proof. The burden lies on the prosecution to prove their case and that burden cannot be said to be discharged by the failure of the accused to cross-examine the witnesses, particularly when the accused are not represented at all. 12. Lastly, Mr. Dalvi was submitting that the circumstances that the bladders were kept concealed in gunny bags and accused No.3 ran away and accused No. 1 was trying to run away, coupled with the fact that two of the accused admitted to be associates of the third, who brought the liquid, must inevitably lead to the conclusion that the bladders contained contraband liquor. These circumstances could, at the most, raise a certain amount of suspicion against the accused, but no amount of suspicion can take the place of proof, which the prosecution have failed to adduce. The prosecution must thank themselves for withholding from the Court important and clinching evidence like sealing and sending the samples of the liquid to the Chemical Analyser and like producing the clinching evidence of the report of the Chemical Analyser. With the materials, as they stand, it must be held that the prosecution have failed to prove their case as against the appellants, accused Nos. 1 and 3, and their convictions were entirely unwarranted. 13. In the result, the appeal is allowed. With the materials, as they stand, it must be held that the prosecution have failed to prove their case as against the appellants, accused Nos. 1 and 3, and their convictions were entirely unwarranted. 13. In the result, the appeal is allowed. The convictions and sentences of rigorous imprisonment for four months awarded to the two appellants, Narbhaisingh and Jagjitsingh, under s. 66 (1) (b) of the Bombay Prohibition Act are quashed and set aside and they are acquitted of that offence. The bail bond of accused No. 1 Narbhaisingh, who alone had availed himself of bail. Iha11 stand cancelled. Appeal allowed.