Judgment :- 1. This is an appeal filed by the State against the judgment of the Sub Magistrate, Tellichery acquitting the accused who was tried for an offence under S.8(1) (a) of the Kerala Prohibition Act (shortly stated the Act). On 23-1-64 at about 1.30 p.m. Pws.1 and 2, two police constables attached to the Tellichery police station who were on patrol duty were passing along the Tellichery-Coorg Trunk road. They found the accused coming in the opposite direction. When the accused saw the police he took to his heels, but they gave chase and apprehended him and seized from him three bottles of arrack M.O.1 series. M.O.2 is a rope with which the accused had fastened the bottles around his waist. Pws. 3 and 4, two jutka drivers, in front of whose jutkashed the accused was arrested and searched, witnessed the seizure of the bottles and they have attested the mahazar Ext. P-2 prepared at the place. Learned Magistrate disbelieved the prosecution witnesses and acquitted the accused. Whatever might be said about the evidence of Pws. 3 and 4, there was absolutely nothing in the evidence of Pws.1 and 2 to throw any the slightest doubt on the truth of their testimony. Learned Magistrate has referred to some trifling discrepancies whether the accused was walking along the middle of the road or the side of the road or where exactly the accused Was caught by each of the police constables when they stopped him. Such verbal contradictions do not materially affect the case at all and will not afford a sufficient basis for doubting their testimony. They had no motive whatsoever to get up a false case against the accused. Learned counsel for the accused fairly conceded that he is unable to subscribe to the views of the learned Magistrate and admitted that on their evidence the fact of seizure cannot be doubted. 2. Learned counsel, however, argued that there is no evidence in this case that what the bottle contained was 'liquor'. S.8 (1) (a) says: "Whoever, imports, exports, transports or possesses liquor or any intoxicating drug." 'Liquor' is defined in S.7 (8) as including toddy, spirits of wine, methylated spirits, spirits, wine, beer and all liquid consisting of or containing alcohol. So proof that what the bottles contained was liquor is an essential ingredient in proof of the offence. S.8 (1) (a) says: "Whoever, imports, exports, transports or possesses liquor or any intoxicating drug." 'Liquor' is defined in S.7 (8) as including toddy, spirits of wine, methylated spirits, spirits, wine, beer and all liquid consisting of or containing alcohol. So proof that what the bottles contained was liquor is an essential ingredient in proof of the offence. It is admitted that the sample was not sent to the Chemical Analyst and, therefore, there is no certificate from him. Pw.1 merely stated that when they caught the accused and searched his person he found three bottles of arrack tucked up in his waist. Likewise, Pw. 2 the other constable also stated that three bottles of arrack were recovered, but he further deposed that they removed the cork and by smelling both they and the witnesses Pws. 3 and 4 were satisfied that it was arrack. Pws. 3 and 4 have corroborated the evidence of Pw. 2 regarding the smelling. Learned counsel would argue that mere smelling alone is not sufficient to prove that the liquid in the bottle was arrack containing alcohol. 3. Reference was made to the decision in Bhimsinghji v. State of Bombay (AIR. 1960 SC. 483). That was a case under the Bombay Prohibition Act and discussing the question whether the contents of the bottle found in the attache case of the accused was an intoxicant within the meaning of the Act, it was observed, all the evidence in the case to prove that the bottle in the attache case contained an intoxicant within the meaning of the Act is the evidence that on uncorking, the bottle smelt of liquor. It was not sent for analysis and their Lordships held that there was no clear proof that the liquid contained in the bottle found in the attache case was, in the first place, liquor and, in the second place, if liquor that it was an intoxicant within the meaning of the Act. 4. Again the case in Behram Khurshid Pesikaka v. State of Bombay (AIR. 1955 S.C.123), the Supreme Court pointed out as follows; "The bare circumstance that a citizen accused of an offence under S.66 (b) is smelling of alcohol is compatible both with his innocence as well as his guilt. 4. Again the case in Behram Khurshid Pesikaka v. State of Bombay (AIR. 1955 S.C.123), the Supreme Court pointed out as follows; "The bare circumstance that a citizen accused of an offence under S.66 (b) is smelling of alcohol is compatible both with his innocence as well as his guilt. That being so, it is the duty of the prosecution to prove that the alcohol of which he was smelling was such that it came within the category of prohibited alcohols and the onus is not discharged or shifted by merely proving a smell of alcohol." 5. Another decision to which our attention was drawn is the case In re Madiga Boosenna (AIR. 1964 A. P. 429), where also the smell of liquor was considered not sufficient to prove the offence. There it was stated: "When scientific methods are available to prove the fact of alcoholic content of an article, the prohibition officers should not be allowed to confine proof of such an article by their mere oral statements, because the primary duty of the prosecution is to exclude every possibility of a doubt or suspicion before they ask for the conviction of a person charged under the Act, The smell of liquor is not sufficient to raise a presumption against a person charged for an offence under the Act. The prosecution when they seize the arrack should get it examined by the Chemical Examiner. They cannot be allowed to adopt an easier course of examining its own officers to prove the contents of the tins only by smell. If this is to be accepted as a general rule, it would be giving a very large latitude to the prohibition officers to prove alcoholic content of any prohibited article or drug under the Act by mere smell". 6. Again in another case under the Opium Act In re Ramapuram Ayyanna (AIR. 1963 A.P. 334), it was held: "For a conviction under S.9 (a) Opium Act the prosecution must prove (1) that the accused was in possession of a substance; and (it) that that substance was opium falling within one or other of the categories included in the definition of opium in the Act. 1963 A.P. 334), it was held: "For a conviction under S.9 (a) Opium Act the prosecution must prove (1) that the accused was in possession of a substance; and (it) that that substance was opium falling within one or other of the categories included in the definition of opium in the Act. In all such cases therefore the substance in question must be analysed by an expert competent to determine the composition of the vegetable matter like opium, and his opinion must be available to the court for its consideration before a conclusion could be reached as to whether the substance in question is opium or not. This is important because the offence does not involve any mens rea as mere possession is declared on offence." 7. Learned State Prosecutor brought to our notice two decisions of this court in State v. Narayanan (1962 KLT. 31) and State v. Bhavani (1963 KLT. 549) - to which one of us was a party. In 1962 KLT 31 (cited supra) the accused was found in possession of 7 measures of toddy (the quantity being in excess of the permitted quantity) and 48 oz., of illicit arrack. The learned Magistrate acquitted the accused on the ground that there was no reliable evidence that what was recovered was illicit arrack and toddy as they were not sent for chemical analysis. In appeal by the State, this court took the view that excise officers, particularly with long experience in the department, could be considered as experts on the question whether a certain liquid is 'liquor'. The witnesses in the case had not only smelt the liquid, but had tasted it and it was held that their expert opinion could safely be relied upon. Even in that case it was emphasised that the officers should furnish the data on which their opinion is based and that their bald statements that the bottle contained illicit liquor were not sufficient. In the other case in 1963 KLT. 549, Pw.1 an excise guard, who had put in 20 years of service in the department who was working in the prohibition area for the past 10 years and who had experience of a large number of prohibition cases seized from the accused seven edangazhis of fermented wash fit for illicit distillation. In the other case in 1963 KLT. 549, Pw.1 an excise guard, who had put in 20 years of service in the department who was working in the prohibition area for the past 10 years and who had experience of a large number of prohibition cases seized from the accused seven edangazhis of fermented wash fit for illicit distillation. Pw.1 had deposed that he had tasted the liquid and found that it had the taste of arrack and having smelt it found strong smell of liquor and he was satisfied that it was Koda, a fermented liquid made out of the bark of Karinja, jaggery and water for distilling arrack. The evidence of the witness was thought sufficient and the order of acquittal was set aside. 8. Here in this case it was only two police constables with practically no experience in the detection of prohibition "cases who were examined and they baldly stated that the liquid was arrack. Pw. 2, no doubt, stated that himself and the other witnesses smelt it, but Pw.1 did not even say this. Unlike the cases referred to, none of the witnesses say that they had tasted the liquid and are certain that it is arrack. However, in view of the observations of the Supreme Court in the cases referred to, we are tempted to agree with the submission made by the learned counsel for the accused that in the absence of a report from the Public Analyst, it would not be safe to rely on the smell alone in finding that the liquid contained in the bottle was liquor within the meaning of the Act. It may be that sending these articles to the Public Analyst in all these prohibition cases and getting the certificate may entail a certain amount of difficulty and probably delay, but that cannot be helped. It is a salutory principle of law that always the best evidence should be produced to prove a fact, even though any inferior kind of evidence should not be excluded from consideration under the rule of best evidence. The Government may make arrangements for appointment of a Public Analyst for the Prohibition cases alone, if need be, and instructions may be issued that here afterwards certificates must be obtained before prosecutions are launched. For all these reasons the guilt of the accused has not been established beyond reasonable doubt. The Government may make arrangements for appointment of a Public Analyst for the Prohibition cases alone, if need be, and instructions may be issued that here afterwards certificates must be obtained before prosecutions are launched. For all these reasons the guilt of the accused has not been established beyond reasonable doubt. The appeal filed by the State is dismissed.