Judgment :- 1. The appeals arise from two criminal cases tried by the Special Court (for trial of offences under the Essential Commodities Act, 1955), Trichur for the offence of contravention of Clause.16 of the Kerala Kerosene Control Order, 1968 (for short 'the order'). The aforesaid clause contains a prohibition that no person (other than an oil company or a dealer licensed under the order) shall have in his possession kerosene exceeding one tin (18.5 litres). Contravention of the said clause is an offence punishable under S.7 (1) of the Essential Commodities Act (for short'the Act'). The trial court found the accused in each case guilty of the offence and convicted him and sentenced him to a term of imprisonment and also to pay fine. These are separate appeals filed by each of them. The common point raised by the learned counsel, if accepted, will affect the results of both the appeals. Hence it is convenient to dispose of these two appeals by a common judgment. 2. The Taluk Supply Officer (T.S.O.), Hosdurg detected two hundred litres of kerosene on 10-4-1984 in a shop room which is said to be in the possession of the accused in the first case. The kerosene was found kept in a barrel. The aforesaid article was seized by the T.S.O. after drawing up a mahazar. He filed a report in the local police station on the strength of which the F.I.R. was prepared. After investigation the case was charge sheeted by the police. In the other case the District Supply Officer (D.S.O.) seized eleven barrels of kerosene on 19-10-1985, stocked in the compound of the accused. Even at the time of seizure the accused informed the D.S.O. in writing (Ext.P4) that the kerosene so stored did not belong to him but belonged to another person whose name is also mentioned. The local police registered an F.I.R. when the D.S.O. filed a report and after investigation the case was charge sheeted. 3. The common feature in both the cases is that the officer who effected seizure had not taken a sample from any of the barrels, nor has the contents of the barrels been subjected to chemical analysis or any other scientific test. In both cases, prosecution relies on the testimony of the officer concerned that when the liquid was smelt, he identified the same to be kerosene. In both cases, prosecution relies on the testimony of the officer concerned that when the liquid was smelt, he identified the same to be kerosene. The trial court accepted the aforesaid evidence and reached the conclusion that the accused concerned was in possession of kerosene far in excess of the permitted quantity. The conviction in both cases is based on the said conclusion. 4. Learned counsel for the appellants contended, inter alia, that prosecution cannot succeed in a case for contravention of Clause.16 of the order unless the contraband article is proved to be kerosene after subjecting at least a sample of it to chemical analysis or such other scientific test. No person, however competent he may be, can say that a particular liquid is kerosene as defined in the order, merely by smelling the liquid, contended the counsel. He also contended that even if a person is able to say that the liquid has the smell of kerosene that is hardly sufficient to conclude that the liquid is kerosene as defined in the order. 5. Clause.2 (a) of the order defines kerosene thus: "Kerosene shall have the meaning assigned to it in item No. 7 of the first schedule to the Central Excise and Salt Act, 1944 (Central Act 1 of 1944) and shall not include Aviation Turbine Fuel:" Item No. 7 in the First Schedule to the Central Excise and Salt Act. 1944 defines kerosene as "any mineral oil (excluding mineral colza oil and turpentine substitute) which has a f lame height of eighteen millimetres or more and is ordinarily used as an illuminant in oil burning lamps" In explanation H (of the said item) it is mentioned that "Flame height" shall be. determined in the apparatus known as the smoke point lamp in the manner prescribed in this behalf by the Central Government by notification in the Official Gazette". Explanation I of the said item defines mineral oil as an oil consisting of a single liquid hidro carbon or a liquid mixture of hidro carbons derived from petroleum coal-shale, peat or any other bituminous substance and includes any similar oil produced by synthesis or otherwise. 6. The definition postulates that the liquid must have a.particular standard, if it is to be treated as kerosene under the order. 6. The definition postulates that the liquid must have a.particular standard, if it is to be treated as kerosene under the order. It shall not only be mineral oil of a particular variety mentioned therein, but its flame height shall be of a specified range. In other words if the range of the flame height is even one millimeter less than the standard fixed, the liquid would not be regarded as kerosene as defined in the order, even if it has the smell of kerosene and can be used as kerosene for any purpose. Is it possible to determine that the liquid involved in these cases had the standards prescribed for kerosene without conducting scientific analysis or chemical examination of its sample? It does not require much effort to convince any one that the opinion formed by a person without conducting any scientific test is likely to go wrong. Moreover, it is almost impossible for any human being, however experienced he may be. to pronounce opinion regarding the scientific standard of any stuff merely by smelling it. At the most such a person may be able to make an approximation of the quality or standard by smelling a thing, or even by tasting it. Whenever a particular scientific standard is fixed for a commodity the ascertainment must be made by subjecting it to scientific test. Opinions formed by looking at it, smelling it or tasting it cannot be proper substitutes for results of scientific or chemical analysis. The position may perhaps be different if no standard as such is fixed for a particular commodity or article the possession of which amounts to an offence. 7. A Division Bench of this court in State of Kerala v. Sreedharan (1965 K. L. T. 1002) has considered the evidentiary value of the statement of an excise officer that a particular liquid was liquor within the meaning of Kerala Prohibition Act, 1950. It has been held by the Division Bench that in the absence of a report of a Public Analyst, it would not be sufficient to rely on the opinion that the liquid contained in the bottle was liquor within the meaning of the Act. It has been held by the Division Bench that in the absence of a report of a Public Analyst, it would not be sufficient to rely on the opinion that the liquid contained in the bottle was liquor within the meaning of the Act. The Division Bench has further observed that "it may be that sending such articles to a public analyst in all the prohibition cases and getting certificates may entail a certain amount of difficulty and probably delay as well, but that cannot be helped in criminal cases. It is a statutory principle of law that always best evidence should be produced to prove the fact". In Francis v. State of Kerala (1965 K. L. T. 1034) a learned judge of this court, following the principle laid down by the Division Bench in the decision cited supra, has stated as follows: "In cases such as this, where the mere possession of a substance constitutes an offence, the court should see that the identity of the substance is established beyond doubt. It should insist that the principle of law that the best evidence should be produced to prove a fact, is adhered to. Microscopic examination as also chemical analysis could establish the identity of ganja beyond controversy and as such the best evidence to prove the fact that the substance recovered from the accused was ganja would have been a certificate to that effect from the chemical analyst. In the absence of such a certificate the conviction of the accused for the possession of ganja cannot be sustained". Same principle has been reiterated by this court in Muthan Ankamuthu v. State of Kerala (1970 K.L.T. 427). In this connection, some observations made by the Supreme Court in State of A. P. v. Boosenna (AIR 1967 S.C.1550) can be referred to with advantage. That case related to an offence under S.4(1) of the Andhra Pradesh Prohibition Act, 1937. On facts, the Supreme Court found that the only evidence for the conclusion that the liquid contained in the tins seized was alcohol was the statement made by witnesses that there was strong smell of alcohol. The Supreme Court has stated as follows: "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. The Supreme Court has stated as follows: "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 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". 8. In State of Maharashtra v. H.D.P. Oil Centre (1977 Crl.L.J. 833), the question considered was whether the accused therein had displayed the price of Vanaspathy which was stored in the shop of the. accused, since failure to display the price of Vanaspathy was made punishable under S.7 of the Essential Commodities Act. The police officers who recovered filled containers from the shop had asserted that the contents therein were Vanaspathy Ghee. It was contended by the defence in that case that the contents in the containers were something else and not Vanaspathy. Chandrachud, J. (as he then was) made the following observations in the said decision: "Prosecution should have laid evidence to say that the tins in fact contained Vanaspathy in the sense in which the expression is used in the schedule. The ipse dixit of the Sub Inspector who had merely assisted the Rationing Inspector in effecting the raid cannot establish the charge which involves a punishment of as long a term as seven years and normally of not less than three months, as provided in S.7(1) (a) (ii) of the Essential Commodities Act, 1955". 9. Learned Public Prosecutor contended that a strict approach regarding proof of the standard of a commodity may sometimes defeat the purpose of the orders issued under the Act. It is argued that sometimes it may be possible for experienced persons to identify kerosene without subjecting it to chemical analysis. In support of the said contention, learned Public Prosecutor invited my attention to a passing observation made by Vaidyalingam, J. in Boosenna's case (cited supra). That observation was made with reference to a contention that the particular article seized in that case was not opium as defined in the Opium Act, 1817. His. In support of the said contention, learned Public Prosecutor invited my attention to a passing observation made by Vaidyalingam, J. in Boosenna's case (cited supra). That observation was made with reference to a contention that the particular article seized in that case was not opium as defined in the Opium Act, 1817. His. Lordship stated that opium is a substance which once seen and smelled can never be forgotten since opium possessed a strong characteristic which is possible to all people to identify without having it subjected to chemical analysis. I find it difficult to import the said observation to the facts of this case where a particular scientific standard is fixed for kerosene which standard is discernible only through scientific analysis. Learned Public Prosecutor has cited the decision in Sri Chand Batra v. State of U.P. (AIR 1974 S.C. 639). In that case an Excise Inspector reported that the liquid seized from the possession of the accused was illicit liquor on the basis of his own smell as well as the result of some tests conducted by him. The Supreme Court was inclined to treat the Excise Inspector as an expert within the meaning of S.45 of the Evidence Act. The Excise Inspector conducted several tests and the smelling test was only one among the different tests adopted by him. The Supreme Court upheld the conviction and sentence in that case in view of all such tests and also because the accused did not challenge the conclusions arrived at by the Excise Inspector during trial stage. The ratio in that case has thus no application here. The contention that such a strict, approach may defeat the very purpose of the orders issued under the Act cannot be acceded to in cases where makers of the law lays down particular scientific standards for the commodity in respect of which regulations are made. If the Supply Officers who inspect places of storage of such suspected commodities fail to take samples from such stocks and have them analysed in the laboratory, the consequence is inevitable that criminal courts would find it difficult to conclude that the commodity concerned is of the particular standard fixed by law. It is for the Government to instruct the Supply Officers and the police to take such precautionary measures when suspected contraband articles are found or seized. It is for the Government to instruct the Supply Officers and the police to take such precautionary measures when suspected contraband articles are found or seized. I, therefore, allow these appeals and set aside the conviction and sentence passed on the appellants. They are acquitted and are directed to be set at liberty. Fine, if collected, shall be refunded. Allowed.