ORDER M. Madhavan Nair, J. 1. This motion is by a person convicted under section 8 (1) (a) of the Prohibition Act, 1950. 2. The prosecution case is that, at about 7 p.m. on May 15th, 1964, he was found by P.Ww. 1 to 5 carrying five bottles of arrack in a basket on his head. P.W. 2 is a Police Head Constable, and P.W. 5, a Police Constable, on seeing whom he threw the basket into a bush when two bottles broke. The other three bottles were seized by P.W. 2, who identified their contents to be arrack by smell. 3. The accused pleaded not guilty. 4. P.Ww.1, 3 and 4 are members of a local Prohibition Committee. They disowned to have seen the accused Carrying arrack. Acting on the testimony of P.Ww. 2 and 5, the Sub Magistrate, Taliparamba, found the accused guilty and fined him Rs, 500, with three months simple Imprisonment in default. On appeal, the Sub Divisional Magistrate, Hosdrug, confirmed the conviction and sentence. Hence this motion for revision of the conviction. 5. Counsel opened his argument by pointing out that there was no chemical analysis of the I contents of the bottles seized from the petitioner and that, as per the dictum in State of Kerala v. Sreedharan 1965 K.L.T.1002 in the absence of a report from the Public Analyst the liquid seized cannot be found to be liquor. I am afraid the decision cited does not lay down imperatively that in the absence of chemical analysis a liquid can in no case be found to be liquor. As pointed out by the State Prosecutor, liquor is defined in the Prohibition Act, to include toddy, which latter has been defined in the Act as " the fermented or unfermented juice drawn from cocoanut, palmyra, date or any other kind of palm tree". The definition of toddy does not require it to be shown to contain alcohol. All that need be proved is that the liquid was drawn from one of the specified palms; and if convincing proof thereof is given, the liquid has to be found to be toddy and therefore liquor. The definition of toddy does not require it to be shown to contain alcohol. All that need be proved is that the liquid was drawn from one of the specified palms; and if convincing proof thereof is given, the liquid has to be found to be toddy and therefore liquor. It is also pertinent to note here that the decisions in State v. Narayanan 1962 K.L.T. 31 and State v. Bhavani 1963 K.L.T. 549 are cited in 1965 K.L.T. 1002 with apparent approval, and that in those two decisions liquids were found liquor without chemical analysis, and such finding was made basis of convictions under section 8 of the Prohibition Act. The relevant dictum in 1965 K.L.T. 1002 runs thus : " 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. " The first sentence in the above quote says only that in the absence of a report from the Public Analyst it would not be safe to rely on the smell alone to find a liquid to be liquor. It only means that a test by smell is unsafe unless corroborated by a report of the Public Analyst. It does not in my opinion, mean that no test other than smell cannot be had. As regards test by smell, the Supreme Court has pointed out in Maharaj Prithvisinghji Bhimsinghji v. State of Bombay A.I.R. 1960 S.C.483. It only means that a test by smell is unsafe unless corroborated by a report of the Public Analyst. It does not in my opinion, mean that no test other than smell cannot be had. As regards test by smell, the Supreme Court has pointed out in Maharaj Prithvisinghji Bhimsinghji v. State of Bombay A.I.R. 1960 S.C.483. "Even if water or any liquid other than liquor had been poured into a bottle which had recently contained liquor the smell of alcohol would still be there". That was only one of the possibilities: there may be many others as well. Their Lordships of the Supreme Court have not said that in the absence of report of a Public Analyst, no liquid can be held to be liquor. Nor do I think that the Division Bench in 1965 K.L.T. 1002 said so. Of course, the report of a Public Analyst, would go a long way in proof of the liquid being liquor, but that is not the only mode of proof admissible in a case under the Prohibition Act. It is not for the Court to say that a particular kind of evidence alone will be acceptable at proof. The Court would only say whether the evidence given is admissible, and, if admissible, whether it proves the thing sought to be proved beyond reasonable doubt. I do not think that any observation in 1965 K.L.T. 1002 has gone beyond that. The last sentence in the quote is an advice given to the Government that it will do well to insist on its officers in the Prohibition Department to secure reports of the Chemical Analyst so that there may be the best evidence possible for prosecution in the Prohibition cases. That cannot be cited as a ratio decidendi in the precedent. I do not accept the contention of counsel that in the absence of a Public Analyst's report, a finding cannot be had that any liquid is liquor. 6. On the merits of the case, the only proof given of the liquid seized from the petitioner being liquor, is the opinion of P.W. 2, a Police Head Constable, that by smell he felt it to be so. As has been observed by the Supreme Court, it is not proof sufficient in law and therefore cannot be the basis of a conviction. The accused in this case is therefore entitled to acquittal. 7. As has been observed by the Supreme Court, it is not proof sufficient in law and therefore cannot be the basis of a conviction. The accused in this case is therefore entitled to acquittal. 7. In the result, I set aside the conviction and sentence imposed on the petitioner and acquit him. The fine, if any realised, will be refunded to the petitioner.