V. Bhargava, J. - (1.) I have heard learned Counsel for the applicant and learned Counsel for the State. I agree with the learned Sessions Judge, who has made the reference, that the Magistrate committed an illegality in taking into account the evidence of Ramphal whose cross -examination could not be completed and who was again not produced for further cross -examination. On the record there is only the evidence of one recovery witness Kamta to the effect that the applicant was in possession of five bottles of liquor. The circle Inspector of the police, who had made the recovery, was not examined by the prosecution, so that the prosecution case of recovery rests on the solitary evidence of Kamta. Kamta was not even a witness of the locality and is a person residing in another locality. The chargesheet shows that he resides on Hamilton Road while the recovery took place in Katra. Clearly, he is a chance witness. On his evidence alone no definite finding could be recorded about the recovery.
(2.) IN addition, there is unsatisfactorily evidence to show that the possession of the bottles of country liquor, which were found to be with the accused, amounted to any offence. The maximum limit for sale of country liquor is one seer of 35 per cent under -proof liquor and the same quantity can be kept in possession by any one without committing an offence. The evidence of the Excise Inspector, Sri R.K. Tiwari, does not show that the five bottles of liquor contained in them liquor which if brought upto 35 per cent under proof, would be more than one seer. In his evidence he has stated nothing at all about the strength of the country liquor or about its quantity except that there was liquor in five bottles. There is no definite evidence that each bottle was full. Further, the strength of the liquor given by him in the various bottles varies between 56 and 63 per cent under -proof. How much it would be if the strength is brought upto 35 per cent under proof is not stated. It is clear that the prosecution evidence in this case was quite insufficient to justify the conviction and there would be no justification for directing a fresh trial. A fresh trial would be a great harassment of the accused and the referring order of the learned Sessions Judge shows that the accused has already been very considerably harassed. In the circumstances, I accept the reference, set aside the conviction and sentence of the accused Rikhi Lal and acquit him of the charge under Section 60 of the Excise Act. The fine, if paid, shall be refunded to him.;