1985 P Cr (PLP)

(b) All articles of a solid nature should be placed in suitable containers.

2. The above exhibits should then be properly sealed.

3. The sealed articles are then placed in wooden boxes using cotton wool or Bhusa as packing material. Old office records and papers are quite unsuitable; in addition to which any letters enclosed with the exhibits are apt to be lost or mislaid.

4. The wooden box should then be covered with cloth and carefully sewn into a neat parcel. This box is again sealed. Explanation:‑‑ Unless this is' desired by the Court, samples of spirit, which are considerably stronger than 20 U.P. should not be sent to the Chemical Examiner, since it may safely be assumed, from the test made by the excise staff, that they are so much above the strength of licit spirit as to be illicit beyond any possibility of doubt. Similarly, if a working still has been seized there is no need to send samples of spirit seized to the Chemical Examiner since there can be no reasonable doubt that this spirit is illicit whether it is above or below the strength of licit spirt. In the case of Lahan, tire presumption raised by section 76 of the Punjab Excise Act is that the finding of the Lahan is prima facie a proof of an offence under the Excise Act and it is for the defence to prove that the substance is something other than Lahan. The presumption raised by section 76 of the Act is always a very important link in the chain of evidence against an accused person in an excise case, and if there is any danger of it being overlooked the attention of the Court should always be invited to it." "Sections 32, 10 and 5 of the Dangerous Drugs Act, the Opium Act and the Punjab Opium Smoking Act, respectively, should also be brought to the notice of the Courts, in cases falling under these Acts." "Normally samples of opium should be sent for analysis to the Chemical Examiner to Government, Punjab, as provided above. In special cases in which it is considered desirable to obtain the opinion of the experts of the Opium Factory, Ghazipur, the matter should be reported to the Financial Commissioner for his orders. The instructions laid down in the second paragraph above should be observed in despatching the opium to the Manager, Opium Factory, Ghazipur. The Central Board of Revenue has fixed a fee of Rs. 16 per sample for analysis of any sample of contraband opium in the laboratory of the Opium Factory."

6. The heading of para. 4.18 is 'Chemical analysis' and it shows how samples of the excisable articles should be sent for analysis and opinion of the Chemical Examiner, whose report is admissible in evidence under section 510 of the Code of Criminal Procedure. A mere perusal of this para is sufficient to show the legal significance and importance of chemical analysis of such articles. Even otherwise whenever any prohibited excisable article or intoxicant like liquor, Lahan or opium etc. has been recovered from an accused person, before the prosecution can succeed in securing the conviction of such a person, the initial onus is upon the prosecution to prove beyond any reasonable doubt that what has been recovered is liquor, Lahan or intoxicant etc. and as mentioned above the best known scientific method, to determine the nature of such article or substance is chemical analysis by the competent authority. Normal practice in such cases, as mentioned in para. 4.18 referred to above, is to send such articles to the Provincial Chemical Examiner for necessary analysis. The report of the Chemical Examiner is admissible in evidence under section 510, Cr. P.C. On the production of such report of the Chemical Examiner the initial burden placed upon the prosecution stands discharged and the same shifts to the accused to prove that what has been recovered from him is not in fact liquor and Lahan etc. It is well‑settled principle of Islamic Jurisprudence that the initial onus in such cases always lies upon the prosecution and unless this onus is discharged, it does not shift to the accused to prove to the contrary. In the instant case, as mentioned above, the prosecution did not care to send any sample out of the alleged liquor and Lahan to the Chemical Examiner for necessary anlaysis. In the absence of such analysis the onus will remain on the prosecution.

7. It is contended by the learned State counsel that an Excise Inspector may be treated as an expert witness under section 45 of the Evidence Act and his statement may be considered sufficient proof to establish the nature of the articles recovered from the accused. In other words according to him in such a situation there is no need of sending any sample for chemical analysis. An Excise official including an Excise Inspector, by virtue of his office or designation cannot be treated as an expert witness under section 45 of the Evidence Act, unless it is established that he had acquired special knowledge, skill or experience in the science of intoxicants. According to section 45 of the Evidence Act an expert is a person, who has acquired special knowledge or skill in a particular science, art, trade, profession or business, which is not common to the average man but is possessed by that expert by reason of his special study or experience. In other words he must have made a special study of that particular subject or acquired a special experience therein i.e. he must be skilled in any particular art, trade, or profession and have adequate knowledge of that subject for forming opinion on subject in dispute. In ordinary language that witness must have specialised himself in that particular field or subject. Moreover, a mere knowledge and experience may no be sufficient to determine the nature of an excisable article or substance but it will further be necessary to apply certain laboratorical an chemical tests. In the instant case Excise Inspector Masood Ahmad, in, the first instance, does not claim to be an expert witness and the record is completely silent as to whether he had acquired any special knowledge or experience in the Science of intoxicants etc. There is further nothing on the record that he had applied any laboratorical test to determine the nature of liquor and Lahan recovered from the accused. In this situation the said Excise Inspector cannot legally and factually be held or treated as an expert witness under section 45 of the Evidence Act. If the claim of the prosecution is that a particular Excise Officer is an expert witness under the Evidence Act, the onus is upon the prosecution to bring on the record his qualifications etc. to justify his claim so that the opposite party may test his knowledge or ability in that capacity through cross‑examination. Excise Inspector, Masood Ahmad, has nowhere stated that he had acquired special knowledge or experience in this particular field. He has not even alleged that he had obtained any diploma or certificate from a competent Institution for testing such articles. The result is that the claim of the prosecution, to treat the said Excise Inspector as an expert witness under section 45 of the Evidence Act, cannot be accepted, and consequently the liquor and Lahan allegedly recovered from the accused Shamman is not proved to be liquor or Lahan.

8. It may, however, be observed that for proper administration of justice, it is not desirable that the Excise Inspector who is for all practical purposes the prosecutor in a case of this type, to give such power to test the nature of the liquor and Lahan etc. It is not denied that as a prosecutor, he may be interested in the success of the prosecution case and cannot enjoy the same amount of confidence as any independent witness. In any case the accused may be justified to doubt his bona fide. To avoid any such apprehension of the accused, the job of testing such articles should be entrusted to some independent agency like the Chemical Examiner. However, an excise official in order to satisfy his own conscience may be justified to carry out the initial test as required under chapter‑8 read with Appendix‑A of the rules contained in Punjab Excise Manual Vol. III to determine the ingredients of liquor and Lahan to continue the investigation but ultimately report for placing it before the Court should be obtained from the Chemical Examiner, which is admissible in evidence under section 510, Cr. P.C. Such initial anlysis by the excise official may not be made basis of conviction of the accused person. If however such departmental official is a trained expert witness under section 45 of the Evidence Act, he should not associate himself with the investigation otherwise the accused will not have the same amount of confidence in him as in any other independent expert witness.

9. According to the learned State counsel the statement of the Excise Officer should be considered sufficient to prove the nature of Lahan recovered from the accused under section 76 of the Act. I am not inclined to accept this contention. A mere verbal assertion by some official of the Excise or Police Department that what was recovered from the accused was Lahan cannot be sufficient unless it is further proved through scientific analysis by an independent agency that it was really Lahan as defined in the Act. The fate of the case cannot be left at the mercy of such Excise or Police official. It is not denied even by the learned State counsel that the possibility of misuse of such power by such official cannot be ruled out. To avoid any such situation the safer course is to insist upon the chemical analysis by H some independent agency. It is not understandable why the excise department is not following the normal practice of sending such objection able articles/ substance to the Provincial Chemical Examiner for necessary analysis .

10. A perusal of the above explanation to para. 4.18 shows that samples of spirit which are considerably stronger than 20 U.P. should not be sent to the Chemical Examiner since it may safely be assumed from the test made by the Excise Staff that they are so much above the strength of licit spirit as to be illicit beyond any possibility of doubt. In the instant case, it is an admitted fact that the Excise Inspector had made no test whatever to determine the strength of the liquor or Lahan. In the absence of such test even first part of this explanation cannot be pressed into service in the present case.

11. The above‑quoted explanation further shows that if a working still has been seized, there is no need to send samples of spirit seized to the Chemical Examiner, since there can be no reasonable doubt that this spirit is illicit, whether it is above or below the strength of licit spirit. Further in the case of Lahan the presumption raised by section 75 of the Punjab Excise Act, 1914, is that the finding of the Lahan is Prima Facie a proof of an offence under the Excise Act and it is for the defence to prove that the substance is something other than Lahan. No doubt, according to the departmental instructions contained in Chapter 8 read with Appendix‑A of the Punjab Excise Manual Volume III certain Excise officials are allowed to carry out certain initial tests and they are supplied testing instruments for this purpose, but the Excise Inspector, Masood Ahmad, had made no such test whatever and, therefore, the prosecution cannot take any benefit of the first part of the explana tion to para. 4.18 referred to above. Since the prosecution has alleged that the accused was manufacturing/ distilling illicit liquor and the same was recovered from him by the raiding party, the onus was upon the prosecution to prove through some scientific chemical analysis that what was actually manufactured or distilled by and recovered from the accused I was liquor and Lahan which is prohibited under the law. In the absence of some scientific chemical analysis the initial onus will remain on the prosecution and consequently the burden will not shift to the accused.

12. In the explanation to para. 4.18 reference has also been made to section 76 of the Punjab Excise Act (hereinafter referred to as the Act) which is reproduced below:‑ S.76. "Presumption as to commission of offence in certain cases.‑ Whenever any person is found in possession of (a) any still, utensil, implement or apparatus whatsoever or any part or parts thereof, such as are ordinarily used for the manufacture of any intoxicant other than Tari. (b) any materials which have undergone any process towards the manufacture of an intoxicant or from which, an intoxicant has been manufactured it shall be presumed, until the contrary is proved, that his possession was in contravention of the provisions of this Act." According to the learned defence counsel, the latter part of the said explanation regarding the presumption under section 76 of the Punjab Excise Act, 1914, the same should be struck down as it is against the well‑settled principle of Islamic Criminal Jurisprudence that onus is always upon the prosecution to prove the guilt of the accused. I do not agree with the learned defence counsel because such presumptions are permissible even under sections 114 and 103 of the Evidence Act. However, before the prosecution can rely upon such presumption the burden will still lie upon the prosecution to strictly prove the ingredients J of the said section namely (1) legal possession of the accused of certain utensils, implements or apparatus etc., (2) that such utensils, implement etc. are ordinarily used for the manufacture of any intoxicant (other than Tari), (3) recovery of any material which. has undergone any process towards the manufacture of any intoxicant or from which an intoxicant has been manufactured, (4) to prove through proper scientific chemical analysis that what has been manufactured is intoxicant or which has undergone any process towards the manufacture of an intoxicant, and (5) the ingredients of the term 'manufacture' as defined in section 3(16) of the Act. When all these ingredients are fulfilled, then the prosecution can rely upon the presumption raised under section 76 of the Act and onus will then shift to the accused and the accused can be convicted under section 61(c) of the Act or Article 3/4 of the Order. In the instant case the prosecution has not satisfactorily proved these ingredients against the accused through reliable independent evidence.

13. The term 'Lahan' has not been defined in the Order or Punjab Excise Act, 1914. However, the word 'liquor' has been defined in section 3(14) of the Punjab Excise Act, 1914 as under:‑‑ S.3(14) "'liquor' means intoxicating liquor and includes all liquid consisting of or containing alcohol; also any substance which the Provincial Government may by notification declare to be liquor for the purposes of this Act." A perusal of the above shows that the definition of 'liquor' given in the Act is not exhaustive but power is given to the Provincial Government to declare any substance by notification in the official Gazette as liquor for the purposes of the Act. The Punjab Government in exercise of the said power, vide Notification No. 5663‑E&S, dated the 26th October, 1932 has enacted 'The Punjab Excise Liquor Definitions 1932.' Rules 1.1. and 1.2 of the said definition are relevant and are reproduced below: ‑ "1.1. The substance commonly known as Lahan, of whatsoever ingredients such substance may be composed, whether it has undergone the process of distillation or not, shall be 'liquor' for the purposes of the Punjab Excise Act, I of 1914." "1.2. The following shall, for the purposes of sections 18, 24, 26, 27, 30 and 64 of the Punjab Excise Act, I of 1914, be deemed to be 'country liquor' and 'foreign liquor', respectively:‑ "Country liquor" means all liquor other than rectified spirit, denatured spirit and perfumed spirit not included in the definition of 'foreign liquor', and also includes the substance commonly known as Lahan as above described." Thus according to the above provision the word 'Lahan' was included in the definition of 'liquor' and 'country liquor' for the purposes oflL the Punjab Excise Act, 1914.

14. As mentioned above, the word 'Lahan' is not defined under the Prohibition (Enforcement of Hadd) Order, 1979. However, the term (M 'intoxicant' has been defined under Article 2(g) of the Order in the following words:‑ "intoxicant' means an article specified in the Schedule and includes 'introxicating liquor' and other article or any substance which the Provincial Government may, by notification in the official Gazette, declare to be an intoxicant for the purposes of this order." The schedule referred to above is also reproduced below:‑

1. The leaves, small stalks and flowering or fruiting tops of the Indian hemp plant (cannabis satiya L), including all forms known as Bhang, Siddhi or Ganja.

2. Charas, that is, the resin obtained from the Indian hemp plant, which has not been submitted to any manipulations, other than those necessary for packing or transport.

3. Any mixture, with or without neutral materials, of any of the articles mentioned in entries 1 and 2, or any drink prepared therefrom.

4. Opium and opium derivatives as defined in the Dangereous Drugs Act, 1930 (II of 1930).

5. Coca leaf and coca derivatives as defined in the aforesaid Act.

6. Hashish." Thus the expression 'intoxicating liquor' has been included in the definition of 'intoxicant'. The expression 'intoxicating liquor' has been further defined in clause (h) of Article 2 of the Order as under:‑ '"'intoxicating liquor' includes toddy, spirits of wine, wine, beer and all liquids consisting of or containing alcohol normally used for purposes of intoxication, but does not include a solid intoxicant even if liquified." Reading these definitions together, it can safely be inferred that the word 'Lahan' is included in the definition of intoxicating liquor as given in clause (h) of Article 2 of the Order. According to the prosecution what was recovered from the possession of Shamman appellant was liquor and Lahan. No doubt the recovery memo and the witnesses of the said recovery have mentioned the word liquor and Lahan but it 0 is an admitted fact that no sample out of the said liquor or Lahan was sent to the Chemical Examiner, Punjab, Lahore for necessary analysis to determine their true nature. Even otherwise, no laboratorical test was carried out to determine as to what was recovered from the appellant was actually liquor and Lahan. In the absence of such chemical analysis, it is not safe to hold that what was seized from the accused was really) liquor and Lahan as defined by the statute.

15. For the foregoing reasons, this appeal is accepted, the conviction and sentences of Shamman, appellant are set aside and he is acquitted I of the charge. He is already on bail and his bail bond stands discharged.) M.Y.H. Appeal accepted.