JUDGMENT : V. Gopalaswamy, J. - This revision is preferred against the judgment of the learned Additional Sessions Judge: Jeypore in Criminal Appeal No. 22 of 1985, confirming the judgment of the learned Sub-divisional Judicial Magistrate, Nawarangpur convicting the Petitioner u/s 47(a) of Bihar and Orissa Excise Act (hereinafter referred to as "the Act") and sentencing him thereunder to undergo rigorous imprisonment for 6 months and to pay a fine of Rs. 1000/-, in default to undergo rigorous imprisonment for a further period of 2 months. 2. The gist of the prosecution case is that on the evening of 25-2-1980" near Nawarangpur bus-stand, the 'accused-Petitioner was found to be in illegal possession of two attache cases containing 143 bottles of foreign liquor of different brands without any valid permit or licence for possessing the same and thereby rendered himself liable u/s 47(a) of the B. and O. Excise Act. 3. The defence plea was one of denial. No witness was examined on behalf of the accused. 4. Prosecution has examined four witnesses to prove its case. P.W. 1 is the Excise Sub-Inspector and P.W. 4 was the Excise Constable. P.Ws. 2 and 3 were examined as independent witnesses, but p. w. 2 turned hostile to the prosecution. 5. The reliable evidence of P.Ws. 1 and 4 shows that on 25-12-1980, under instructions from P.W. 1. P.W. 4 followed the accused from Nawarangpur to Jeypore, while he travelled in the bus carrying the two attache cases M. as. I and LXXX( and at Jeypore also he (P.W. 4) closely followed is movements and returned with the accused in the same bus to Nawarangpur and as the accused got down with the two attache-cases, he (P.W. 4) gave the signal to P.W. 1 indicating that the accused was carrying bottles of liquor. Nothing substantial was elicited in the cross-examination of P.Ws. 1 and 4 to discredit their evidence that the accused got down at Nawarangpur with the two attache cases M. as. I and LXXXI which contained 143 bottles of foreign liquor and the said evidence is also corroborated by an independent witness P.W. 3, who, was a teacher in a High School. 6. On a perusal of the judgments of both the Courts below. it is seen that it is only after careful consideration of the evidence of P.Ws. 1, 3 and 4 and the Chemical Analyst's report Ext. 6. On a perusal of the judgments of both the Courts below. it is seen that it is only after careful consideration of the evidence of P.Ws. 1, 3 and 4 and the Chemical Analyst's report Ext. 3, they have arrived at the concurrent finding that on the relevant evening the accused was found to be in possession of two attache-cases M. Os. I and LXXXI containing as many as 140 bottles of foreign liquor of different brands, the possession of which the accused failed to account satisfactorily. 7. While challenging the judgments of the Courts below the learned Counsel for the Petitioner contended that the fact that the bottles seized from the accused contained liquor was not duly proved. On a perusal of the record it is seen that during the pendency of the trial a bottle from each of the varieties of liquor was sent to the Chemical Analyst and the Analyst, on analysis found that the contents of the 11 bottles so sent to him contained ethyl alcohol of sufficient strength and his report to that effect 'is marked Ext. 3. From the report Ext. 3. it is seen that the strength of the ethyl alcohol in the contents of the 11 bottles is such that it indicates that they contained 'liquor' within the meaning of Section 2(14) of the Act. The 143 bottles seized from the accused contained as many as 11 varieties of foreign liquor. The learned Counsel for the Petitioner cited certain decisions of this Court, including Khetramohan Nayak v. State of Orissa 47(1979) C.L.T. 113, wherein it was held by this Court that hydrometer test is neither safe nor conclusive to determine whether the liquid is out still liquor not. The said decisions have no relevance to the facts of the present case. In the present case, he allegation is that bottles of foreign liquor were seized from the accused and on chemical analysis the contents of the bottles were proved to be liquor. At the time of seizure of the bottles one of the bottles was found broken. The said decisions have no relevance to the facts of the present case. In the present case, he allegation is that bottles of foreign liquor were seized from the accused and on chemical analysis the contents of the bottles were proved to be liquor. At the time of seizure of the bottles one of the bottles was found broken. P.W. 1 deposed that he has served in the Excise Department for 10 to 12 years and he has completed the distillery and P.T.C. training and be has been dealing with foreign liquors and so from the smell and cork manufacture, label on which the strength of the liquor and the name are mentioned he could know the liquor in the broken bottle to be foreign liquor. So the above evidence of P.W. 1 also lends support to the prosecution case that the seized bottles contained foreign liquor. In Abdul Gaffer v. State of Orissa 63(1987) C.L.T. 370, relied on by the learned Additional Standing Counsel, this Court held that an experienced Excise Officer can say from the smell as well as texture that the seized article is Ganja and such evidence can be accepted even without any analysis. Hence as found by both the Courts below, the prosecution has established that the bottles seized from the accused contained foreign liquor. 8. The learned Counsel for the Petitioner relied on Section 74 of the Act as well as on two decisions of this Court in Krushna Chandra Behera v. State 58(1984) C.L.T. 201 and Kasinath Behera v. State of Orissa 60 (1985) C.L.T. 510 and contended that as the seizure of the two attache-cases was not made in accordance with the provisions of Section 74 of the Act, the conviction is vitiated on, that score. From the evidence it is clear that the two attache-cases in question were straight away seized from the accused and so Section 74 dealing with the power to search without a warrant has no application. Bai Radha Vs. The State of Gujarat is a case where the sale point that arose for decision was whether the trial became, illegal by reason of the search not having been conducted strictly in accordance with the provisions of Section 15 of the Suppression of Immoral Traffic in Women and Girls Act, 1956. Bai Radha Vs. The State of Gujarat is a case where the sale point that arose for decision was whether the trial became, illegal by reason of the search not having been conducted strictly in accordance with the provisions of Section 15 of the Suppression of Immoral Traffic in Women and Girls Act, 1956. In that decision it was observed thus: ...10 that sense it would be legitimate to say that a search which is to be conducted under the Act must comply with the provisions contained in Section 15 ; but it cannot be held that if a search is not carried out strictly in accordance with the Provisions of that section the trial is rendered illegal. There is hardly any parallel between an officer conducting a search who has no authority under the law and a search having been made which does not strictly conform to the provisions of Section 15 of the Act. The principles which have been settled with regard to the effect of an irregular search made in exercise of the powers u/s 165 of the Code of Criminal Procedure, would be fully applicable even to a case under the Act where the search has not been made in strict compliance with its provisions. It is significant that there is no provision in the Act according to which- any search carried out in contravention of Section 15 would render the trial illegal. In the absence of such a provision we must apply the law which has been laid down with regard to searches made under the provisions of the Criminal Procedure Code. Hence relying on the above referred larger Bench decision of the Supreme Court and taking into account that the provisions of Section 70 of the Act have not been considered, this Court in Abdul Gaffer's case (supra) differed with the views expressed in Krushna Chandra Behera's case and Kasinath Behera's case. I agree with the view taken by this Court in Abdul Gaffer's case (supra). So the contention of the learned Counsel for the Petitioner that the conviction of the Petitioner is vitiated because the seizure of the attache-cases was not in accordance with Section 74 of the Act, merits no consideration. 9. I agree with the view taken by this Court in Abdul Gaffer's case (supra). So the contention of the learned Counsel for the Petitioner that the conviction of the Petitioner is vitiated because the seizure of the attache-cases was not in accordance with Section 74 of the Act, merits no consideration. 9. The learned Counsel for the Petitioner next contended that as P.W. 2, a witness to the seizure of attache-cases, did not support the prosecution, the evidence regarding the seizure should be disbelieved. In Madan Singh v. State of Rajasthan A.I. R. 1918 S.C. 1511, cited by the learned Additional Standing Counsel, the Supreme Court held that if the evidence of the Investigating Officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses do not support the prosecution version. In this case as earlier found P.Ws. 1, 3 and 4 satisfactorily prove the seizure of the attache-cases containing the foreign liquor bottles from the possession of the accused. 10. In the result, I find that both the Courts below have rightly come to the conclusion that the prosecution could successfully bring home to the accused the offence u/s 47(a) of the Act and hence I confirm the order of conviction passed against the Petitioner u/s 47(a) of the Act. 11. The learned Counsel for the Petitioner contended that the order of conviction and sentence passed by the trial Court is vitiated as the accused was not heard on the question of sentence. The learned trial Court did not comply with the provisions of Section 235(2) Code of Criminal Procedure. Failure to comply with the requirements of Section 235(2) will not affect the conviction under any circumstances but it will only vitiate the sentence. In Tarlok Singh Vs. State of Punjab, the Supreme Court indicated the course to be adopted by the appellate Court when the Sessions Court fails to comply with Section 235(2), Code of Criminal Procedure by making the following observations: ... It may well be said that in many cases sending the Gage back to the Sessions Court may lead to more expense, delay and prejudice to the cause of justice. It may well be said that in many cases sending the Gage back to the Sessions Court may lead to more expense, delay and prejudice to the cause of justice. In such cases it may be more appropriate for the appellate Court to give an opportunity to the parties in terms of Section 235(2) to produce the materials they wish to adduce instead 61 going through the exercise of sending the case back to the trial Court. This may in many cases, save time and help produce prompt justice. In the above referred Supreme Court case it was held that when it is a case of conviction u/s 302, I.P.C. if the minimum sentence is imposed, the question of providing an opportunity u/s 235(2) Code of Criminal Procedure would not arise. The learned Counsel for the Petitioner was heard on the question of sentence. In the present case the learned Counsel for the Petitioner relied upon the material already available on record while pleading for a lenient sentence. He pleaded that as the accused is a young man of about 35 years and as there is no previous conviction against him, he may be released on probation u/s 360, Code of Criminal Procedure. The prescription of a minimum sentence is no bar to the applicability of Section 360, Code of Criminal Procedure, but whether the beneficial provisions of that section should be, applied in favour of the accused in a given case would depend upon the facts of the case. (See Haridas Nath v. States (1988) I O.C.R. 487. Considering the facts and circumstances of the case and particularly the quantity of foreign liquor seized from the accused, I find that this is not a fit case for releasing the Petitioner on probation. However, the imposition of the minimum sentence prescribed u/s 47(a) of the Act would sufficiently meet the ends of justice and therefore, the sentence of fine imposed on the accused by the Courts below is reduced from Rs. 1000/- to Rs. 500/-. Hence while convicting the Petitioner u/s 47(a) of the Act, he is sentenced thereunder to undergo rigorous imprisonment for six months and to pay a fine of Rs. 500/-, in default, to undergo rigorous imprisonment for a further period of one month. 12. 1000/- to Rs. 500/-. Hence while convicting the Petitioner u/s 47(a) of the Act, he is sentenced thereunder to undergo rigorous imprisonment for six months and to pay a fine of Rs. 500/-, in default, to undergo rigorous imprisonment for a further period of one month. 12. In conclusion, with the above modification in the sentence of fine the revision petition is dismissed as it is devoid of any merit. Revision dismissed. Final Result : Dismissed