JUDGMENT : A. Misra, J. - The Petitioner has been convicted u/s 47(80) of the B. & O. Excise Act and sentenced to pay a fine of Rs. 5001/- in default, to undergo R.I. for It months. 2. According to prosecution, on 4-2-1965, while Budhiram Patro, Constable No. 402 (p.w.5) was returning to Nawapara P.S. on duty, he found Petitioner at village Patal bentkuri transporting liquor contained in a drum and two kerosene tins on a buffalo cart. On demand, Petitioner could not produe any licence or pass permitting transport of such a quantity of liquor. P.w. 5 took Petitioner with the cart loaded with liquor to the police station where the A.S.I. (p.w. 3) seized the same in the presence of p.ws. 1, 2 and 6 under the seizure list (Ex. 1). On receipt of a requisition from p.w. 3, the Excise S.I. (p.w. 4) came and tested the contents of the two kerosene tins and found the strength of liquor to be 58. O.U.P. As the cork of the drum could not be opened, he came again on 5th, got it opened, examined and found that the strength of the liquor contained therein was 57.8 U.P. Accordingly, Petitioner was prosecuted for an offence u/s 47(a) of the B. & 0 Excise Act. Petitioner pleaded not guilty to the charge and in defence alleged that p.w. 5 asked him to drive the cart to the P.S. and as he refused to comply with the request, he has been falsely prosecuted. 3. Prosecution examined the three seizure list witnesses (p.ws. 1, 2 and 6), besides the official witnesses (p.ws. 1, 4 and 6) and one more witness (p.w. 7), who claims to have been present at the time p.w. 5 detected Petitioner with the cart carrying liquor and accompanied them to the police station where the articles were seized. Petitioner, in defence, examined one witness who has deposed that on the date in question, while himself and Petitioner were engaged in digging earth at about sunset, p.w. 5 and the Chowkidar came with a cart and asked Petitioner to drive the cart and on his refusal, he was forced to drive the same on promise of double wages. 4. The learned Magistrate who tried the case accepted the evidence of the p.ws. 4. The learned Magistrate who tried the case accepted the evidence of the p.ws. that Petitioner was transporting the drum and two tins on the buffalo cart containing liquor which was beyond the permissible limit, in quantity and convicted him. In appeal before the learned Sessions Judge, Petitioner contended' that no litmus paper test was made to find out if the contents of the drum and tins were liquor; that prosecution has failed to prove that he was in conscious possession of the liquor or that he was in possession of more than the permissible quantity and that be has been prejudiced by the manner in which his examination u/s 342, Code of Criminal Procedure, was recorded. The learned Sessions Judge negatived all these contention and confirmed the conviction and sentence of the Petitioner. 5. In this revision, the conviction and sentence are challenged on the following grounds: (1) that the manner of examination of Petitioner u/s 342, Code of Criminal Procedure, has not been proper; (2) that prosecution has failed to conclusively establish that the substance which is said to have been found in the drum and two kerosene tins was liquor; (3) that on account of failure to prepare the seizure list (Ex. 1) at the spot where p.w. 5 is said to have detected Petitioner carrying the drum and tins, the seizure should be disbelieved; (4) that as the said tins and drum after their alleged seizure at the P.S. by p.w. 3 were not sealed before p.w. 4 examined the tins, there was ample scope for tampering with the contents and the possibility of their having been tampered cannot be eliminated; and (5) that there is absolutely no evidence to prove that the contents of the tins or drum were measured or weighed to come to a position finding that the liquor was in excess of the permissible quantity which alone would constitute fin offence. 6. The first contention is that the manner of examination of Petitioner u/s 342 Code of Criminal Procedure was objectionable as it was in the nature of cross-examination. It is now well settled that every error, omission or irregularity in complying with the provisions of Section 342, Code of Criminal Procedure does not necessarily vitiate the trial as such errors fall within the category of curable irregularities. It is now well settled that every error, omission or irregularity in complying with the provisions of Section 342, Code of Criminal Procedure does not necessarily vitiate the trial as such errors fall within the category of curable irregularities. The question whether the trial will he vitiated in any particular case will depend on the degree of error and prejudice if any, that has been or likely to have been caused. As it appears, Petitioner was represented by counsel before the learned Magistrate. Nothing specific has been pointed out to show that prejudice has resulted in the defence of Petitioner by the manner of examination u/s 342, Code of Criminal Procedure. Therefore, I do not find any merit in this contention. 7. The second contention advanced by learned Counsel for Petitioner is that prosecution has failed to establish that the contents of the two tins and drum in question were liquor. In this connection, it is argued that unless specific evidence is adduced that the necessary tests including the litmus paper test were made, it cannot be positively stated that the liquid which the receptacles are said to have contained was liquor, as defined in Section 2(14) of the Act. In support of this contention, reliance has been placed on the decision reported in State of Andhra Pradesh Vs. Madiga Boosena and Others. In that case, one of the points for consideration was whether the article seized from the accused was liquor as defined u/s 3(9) of the Andhra Pradesh Prohibition Act. The evidence in that case was confined to a general statement of some witnesses that there was a strong smell of alcohol, emanating from the tins which were opened when seized and there was no other satisfactory evidence to establish that the article was one coming within the definition of the expression "liquor". In such circumstances it was observed: Merely trusting to the smelling sense of the Prohibition officers, and basing a conviction on an opinion expressed by those officers, under the circumstances, cannot justify the conviction of the Respondents. 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". 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". Their Lordships distinguished the observation made in an earlier case relating to opium where it was held that opium is a substance which once seen and smelt can never be forgotten, because opium possesses a characteristic appearance and a very strong and characteristic scent, and therefore, absence of chemical analysis would not be a bar to a conviction. 8. The facts of the present case are quite distinguishable from the facts which came up for consideration before the Supreme Court in the decision reported in State of Andhra Pradesh Vs. Madiga Boosena and Others. Here, prosecution does not depend entirely on the smelling sense of the official or nonofficial witnesses in proving that the contents of the tins and drum were liquor. On a requisition received from p.w. 3, p.w. 4 examined the contents of the two tins on 4-2-1965 and the contents of the drum on 5-2-1965. Exs. 3 and 4 are his reports containing his opinion about the nature of the liquid contained in those receptacles. No doubt, in his evidence, p.w. 4 has not stated what particular test he applied in examining the contents nor does he specifically refer to having adopted the litmus paper test. At the same time, in Exs. 3 and 4 and in evidence, he categorically states that the strength of liquor contained in the tins was 58. O.U.P., while the strength of the liquor contained in the drum was 57.8 U.P. When he has given the specific strengths of liquor in the different receptacles, it clearly indicates that he made a scientific test and arrived at those conclusions. In cross-examination, not a single question has been asked to him about the correctness of his findings or about the correctness of the procedure adopted by him or his competency in analysing the contents. Therefore, unlike the facts of the case before the Supreme Court, in the present case, besides the evidence of witnesses relying on their smelling sense, there is the evidence of a qualified man (p.w. 4) who examined the contents, analysed the same and gave positive deductions about the strength of alcohol content. Therefore, unlike the facts of the case before the Supreme Court, in the present case, besides the evidence of witnesses relying on their smelling sense, there is the evidence of a qualified man (p.w. 4) who examined the contents, analysed the same and gave positive deductions about the strength of alcohol content. In these circumstances, I do not find any merit in this contention and agree with the Courts below that prosecution has successfully proved that the liquid contained in the tins and arum was liquor as defined. 9. The third contention is that failure to prepare the seizure list at the spot where p.w. 5 detected Petitioner carrying the tins and drum on the cart is a serious lacuna. I also do not find much substance in this contention. It is not the prosecution case that p.w. 5 made seizure of these articles at the spot where he detected Petitioner carrying them on the buffalow cart. On the other hand, the prosecution case is that p.w. 5 on learning that it was liquor that was being carried took the Petitioner as well as the cart loaded with the tins and drum to the police station and produced the same before p.w. 3 who made the seizure. This is proved by p.ws. 3, 6 and 7. When the seizure was made at the police station by p.w. 3, the question of preparing a seizure list on the road by p.w. 5 does not arise. Of course, the evidence of p.w. 1 and 2 who happen to be two of the seizure list witnesses is not very consistent. P.w. 1 states that on the same day when be reached the police station and signed the seizure list, Petitioner was not present there. while p.w. 2 states that he attested the seizure list two or three days afterwards. This p.w. 2 was declared hostile. As has been observed by the learned Sessions Judge, if the prosecution had rested on the evidence of these two witnesses alone to prove the actual seizure at the P. S., the evidence might not have been dependable. In this case, however, besides the evidence of P.w. 5, there is the corroborative testimony of p.ws. 6 and 7. P.w. 6 is one of the attesting witnesses to the seizure list and there is no reason to doubt his testimony. In this case, however, besides the evidence of P.w. 5, there is the corroborative testimony of p.ws. 6 and 7. P.w. 6 is one of the attesting witnesses to the seizure list and there is no reason to doubt his testimony. Further, the fact of Petitioner having gone to the police station driving the cart loaded with the drum and the two tins finds indirect support from the evidence of d.w. 1, who however, says that Petitioner was forced to drive the cart by p.w. 5 on promise of double labour charges. Considering all these circumstances, there cannot be any doubt that p.w. 1 along with Petitioner and the buffalow cart carrying the drum and two tins were taken to the police station and there the seizure was made. 10. The fourth contention advanced on behalf of Petitioner is that after seizure the two tins and drum were not sealed till arrival of p.w. 4 and his testing of the contents. Therefore, there was ample opportunity for the contents of these containers having been tampered with. This contention appears to be more or less speculative. There is the evidence of p.ws. 3 and 4 that on the very day of affecting seizure, the former sent a requisition to the latter who arrived at 3.00 p.m. and tested the contents of the two tins. These articles were seized at about 11.00 a.m. and the contents of the two tins were tested by p.w. 4 at about 3.00 p.m. No suggestion has been made to p.w. 3 that during the time the articles remained at the police station before arrival of p.w. 4, the tins or drum were left unguarded to enable an opportunity for tampering with the contents. So also, there is no suggestion that liquor was available in the neighbourhood in sufficient quantity to enable the (sic) and drum being filled during the few hours that elapsed. In the case of tins, they were no doubt open but so far as the drum is concerned, the evidence of p.w. 4 shows that the cork was so tight that it could not be opened during his visit on the first day. Therefore, he returned and again on the next day when to the (sic) where the cork of the drum had to be opened with the use of a crowbar to enable testing of the contents. Therefore, he returned and again on the next day when to the (sic) where the cork of the drum had to be opened with the use of a crowbar to enable testing of the contents. This part of the evidence of p.w. 4 has not at all been challenged. In such circumstances, it will not be reasonable to infer that in between the time of seizure and the time when p.w. 4 arrived, the contents were tampered with and liquor was substituted for something else. Hence, I do not find any merit in this contention. 11. Lastly, consider able emphasis has been laid by learned Counsel for Petitioner that in the absence of clear proof that the contents of the two tins and drum were actually measured and the quantity found to be in excess of the permissible limit, a conviction for transporting liquor beyond the permissible limit cannot be sustained. P.w. 4 has stated that the permissible quantity of liquor to be possessed by a person in that district is 3 litres and according to p.w. 3, it is 4 litres. P.w. 3 has stated that the liquor seized was more than 4 litres, while p.w. 4 has stated that each of the two tins was of the capacity of 20 litres and the drum about 170 litres. P.w. 3 has deposed that the tins were full, but the liquor in the drum was about 4 or 5 inches below the brim. Of Course, the contents of these receptacles were not actually measured or weighed, but they contained more than the permissible quantity is proved Dot only by the evidence of p.ws. 3 and 4, but also from other circumstances. Ex. 1 which gives a description of these receptacles shows that one is a big drum and the two others were kerosene tins. The capacity of a kerosene tin is undoubtedly about 20 litres, and therefore, the contents of two tins which according to the evidence were full, must be more than the permissible quantity. When the description of the drum is that it was a big one, there is no reason to discard the assessment of the quantity made by p.w. 4. If the quantity was actually less than the permissible limit as contended now, at least the statements of p. ws. When the description of the drum is that it was a big one, there is no reason to discard the assessment of the quantity made by p.w. 4. If the quantity was actually less than the permissible limit as contended now, at least the statements of p. ws. 3 and 4 when they gave evidence about the approximate quantity would have been challenged by Petitioner in cross-examination. So, though the evidence shows that the contents were not actually measured by p.ws. 3 and 4, there is no room for doubt that the contents of the two tins and drum were definitely far in excess of the permissible quantity of 3 or 4 litres. 12. Thus, I find no merit in any of the contentions advanced on behalf of Petitioner and hold that he has been rightly convicted and sentenced. The revision is accordingly dismissed. Final Result : Dismissed