Judgment :- 1. This Criminal Revision Petition by the accused, who has been convicted by the Additional First Class Magistrate, Peermade and sentenced to rigorous imprisonment for 6 months on each count under sub-clauses (a) and (g) of S.55 of the Abkari Act is against the confirmation of the conviction and sentence by the Sessions Judge, Kottayam. 2. On 12-3-69 at about 1.30 p. m. pw.1 and pw. 2, Preventive officers of the Excise department, on information received, visited the plantation where the petitioner was working as a labourer. They received, reliable news that the petitioner was conducting manufacture of illicit alcohol in a room of a lane which consisted of 6 rooms used as labour quarter. on that information, they prepared Ext. P2 search memo and thereafter they entered the room in which the petitioner lived. It was the 3rd room from the western side of the building. They found in that room 12 litres of wash in a mud pot, 3 litres of arrack kept in 4 bottles and also some articles described as copper vessel, mud pot, funnel and an aluminium pot, kept underneath a cot. They were seized by pws.1 and 2 under Ext. P3 search list and then they prepared Ext. P1 mahazar in respect of the scene of the offence. pws. 3 and 4 affixed their signature to Exts. P1 and P3 to evidence the search and seizure of these articles. pw.1 thereafter laid the charge against the petitioner on 12-5-69. 3. The petitioner denied the charge levelled against him. The evidence of Pws.1, 2 and 4 had been relied upon by the courts below to enter the conviction against the petitioner. pw. 3, however, turned hostile to the prosecution. Anyhow, the evidence of pws. 1, 2 and 4 established that the articles in question had been seized on the date of the incident. But, there is some discrepancy in the evidence of pws.1 and 4 with regard to the room out of which the articles were seized. pw.1 would have it that the seizure was from the third room from the eastern side of the building, while the evidence of pw. 4, was that the seizure was from the third room from the western side of the building in which case the room was not identical. It is admitted that the building consisted of 6 rooms. pw.1 would have it that the seizure was from the third room from the eastern side of the building, while the evidence of pw. 4, was that the seizure was from the third room from the western side of the building in which case the room was not identical. It is admitted that the building consisted of 6 rooms. The case of the petitioner was that he was living in the westernmost room of the lane. The rest of the rooms in the same lane had been occupied by the other labourers working in the plantation. None of them had been examined to prove that the articles were seized from the custody of the petitioner. pw. 4 was a chance witness, who happened to follow the Preventive officers while they were proceeding to the plantation. He came to the plantation in search of some job. It is also significant to note that none of the articles seized under Exts. P1 and P3 had been produced in the court and identified by the witnesses. It is the duty of the prosecution to produce the contraband articles in court so that the witnesses were able to identify them as the same articles which were seized during the instant raid in the room of the petitioner. In the absence of any evidence as to the identity of the articles as well as the failure of the prosecution to prove as to which of the articles were found in the possession of the petitioner, it would be difficult to appreciate the prosecution version of the case. Anyhow, with regard to the article seized, there was no positive evidence that it contained any alcohol. 4. That the wash or the other material alleged to have been seized in 4 bottles out of the custody of the petitioner contained alcohol was sought to be proved through pw.1 on the basis that he smelt or tasted the liquid and that, therefore, he came to the conclusion that the alcohol was seized from the possession of the petitioner. If we rely upon the oral testimony of the Preventive Officers to prove the alcoholic content of the material which they seized, an ordinary citizen will not get justice as it was likely that the Prosecutor will give evidence in his own way to secure a conviction. The evidence of pw.1 or pw. If we rely upon the oral testimony of the Preventive Officers to prove the alcoholic content of the material which they seized, an ordinary citizen will not get justice as it was likely that the Prosecutor will give evidence in his own way to secure a conviction. The evidence of pw.1 or pw. 4 that they tasted the article by smell or otherwise to conclude that the material seized contained alcohol cannot, therefore, be accepted. It is always in the interest of the Prosecutor as well as the accused that the contraband article was sent to the Chemical Analyst for ascertaining as to whether it contained alcoholic content or not. In the absence of best evidence, therefore, the oral testimony of these Officers may not be sufficient to enter a conviction. There was no reason why the wash or the other material which pw.1 seized from the custody of the petitioner was not sent to the Chemical Examiner. It is now established that without the Chemical Examiner's report the evidence of the Prosecutor alone is not sufficient to implicate a person to an offence under S.55 (a) of the Act though the previous decision was to the contrary. In this regard, I may point out a decision reported in State of Kerala v. Narayanan (1962 KLT. 31) where the observation of Smt, Justice Anna Chandy, was as follows: "There is no provision in the Abkari Act or the rules that the liquor should be sent for chemical analysis. The Excise officers may be considered as experts on the question whether a certain liquid is illicit liquor or not. But before the Officer's opinion is accepted, the Court should ascertain the grounds on which his opinion is based so as to test it." 5. Similar was the Lordship's view in another decision reported in State of Kerala v. Bhavani (1963 KLT 549). It runs as follows: "The Excise Guard who gave evidence, has put in twenty years of service in the department and was working in the prohibition area for the past ten years. He has detected several prohibition cases involving seizure of koda or wash. He can legitimately be be considered as an expert and his evidence regarding the wash may be accepted, as expert testimony." 6. He has detected several prohibition cases involving seizure of koda or wash. He can legitimately be be considered as an expert and his evidence regarding the wash may be accepted, as expert testimony." 6. But, a different view was expressed by Govinda Menon, J. on behalf of the Division Bench to which Anna Chandy, J. was also a party in State of Kerala v. Sreedharan (1965 KLT.1002). That observation of Govinda Menon, J. may be seen: "Proof that what the bottles contained was liquor is an essential ingredient in proof of the offence. 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 probable delay, but that cannot be helped. It is a salutary 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." 7. Now the matter is set at rest by a decision of the Supreme Court reported in State of Andhra Pradesh v. Hadiga Boosenna and others (AIR. 1967 Supreme Court 1550). Vaidialingam, J. on a consideration of the entire aspect of the case held as follows in Para.10 and 11 of the above decision: "In the instant case except for a general statement, contained in the evidence of the witnesses, that there was a strong smell of alcohol, emanating from the tins, which were pierced open, there is no other satisfactory evidence to establish that article is one coming within the definition of the expression liquor. Merely trusting to the smelling sense of the prohibition Officers, and basing a conviction on an opinion expressed by those officers under, the circumstance, cannot justify the conviction of the respondents. In such a case 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 such a case 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'. The fact that the accused have not challenged effectively the answers given by the prosecution witnesses that the commodity is arrack will not absolve the prosecution from establishing the ingredients of the offence, for justifying the conviction." 8. In the light of the above decisions, it can be stated that it would be unsafe to depend upon the evidence of the Excise Officers to come to a conclusion that the wash or any liquid seized by them would contain alcohol on the basis of their personal test which may or may not be safe to be relied upon to enter a conviction. It is the duty of the Prosecution to prove conclusively and beyond a reasonable doubt that the accused, who stood charged under the criminal law, has committed the offence. It cannot be said that with the evidence on record the prosecution has established the guilt of the petitioner beyond a reasonable doubt in view of the circumstance that the wash and the liquid they recovered from the petitioner was not conclusively proved to contain alcohol. The seizure of the implements or apparatus for the manufacture of illicit alcohol is also not proved beyond doubt as pointed out already. I find the petitioner is not guilty of any offence. The conviction and sentence are, therefore, not sustainable. 9. In the result, the revision petition is allowed and the conviction and sentence are both set aside. The petitioner is set at liberty and be will be released forthwith.