Gurdev Singh, J. - (1.) THIS is a State appeal against an order of Shri K.S. Minhat, Magistrate First Class, Amritsar, dated 24th April, 1962, acquitting the Respondent Kartar Singh of the charge under Section 61(1 )(a) of the Punjab Excise Act.
(2.) THE Respondent runs Halwai's shop in Kucha Kbair -ud -Din, Ram Bagh, Amritsar. He was prosecuted on the allegation that on the evening of 6th December, 1961, when his shop was raided by H. C. Roshan Lal, he attempted to escape, and on search of bis person a quarter -bottle containing six ounces of country made -liquor, bearing the label "Excellent Quantity Maharaja Dhiraj Spiced Spirit" was recovered from the right dub of the pyjama that he was wearing. At the commencement of his trial on 7th March, 1962, when a charge under Section 61(1)(a) of the Punjab Excise Act was framed against him, the Respondent pleaded not guilty but subsequently on 23rd April, 1962, the date fixed for the prosecution evidence, he volunteered the following statement: The quarter bottle belongs to me. It was recovered from me. I could not make the statement on the previous date due to some misunderstanding. In view of this admission of the possession of six ounces of liquor, the prosecution did not lead any evidence. The report of the Chemical Examiner, to whom a sample of the stuff recovered was sent, was to the effect that the sample resembled licit spirits. The trial Magistrate on due consideration of the material before him, including the admission of the Respondent that he was found in possession of six ounces of licit liquor, however, acquitted the Respondent being of the opinion that the mere recovery of this quantity of liquor from the Respondent did not constitute an offence under Section 61(1)(a) of the Punjab Excise Act as the Halwai or confectioner's shop was not a restaurant within the definition of that word as given in the Punjab Restaurant (Consumption of Liquor) Rules, 1955.
(3.) THIS order of acquittal has been assailed by the learned Assistant Advocate General on the grounds: - (i) that the confectioner's shop was a restaurant as defined in the above -mentioned rules, and (ii) that in any case, the trial Court was wrong in acquitting the Respondent without complying with the provisions laid down in Section 251 -A of the Criminal Procedure Code, and without affording an opportunity to the prosecution to substantiate this allegation. On due consideration of the material before us and hearing the counsel on both the sides, we however, find no justification for interference with the trial Court's order.;