Sharma, J. - (1.) THIS is an application in revision by Shabbirali who has been convicted by the learned First Class Magistrate, Sikar, under sec. 54(a) of the Rajasthan Excise Act, 1950 (hereinafter to be referred to as the Excise Act) and sentenced to two months' rigorous imprisonment and a fine of Rs. 100/-and in default of payment of fine to further rigorous imprisonment for one month.
(2.) ACCORDING to the prosecution, on the 16th of October, 1958 at about 7 A.M. the Excise Inspector, Shri Jai Jai Ram accompanied by two Motbirs and a few other persons of the excise department raided the house of the accused Shabbirali which is a portion of a bigger house in which one Akhtarali also occupies another portion. From a room on the upper floor which was in possession of Shabbirali, Sulfa weighing one Tola was recovered. A recovery memo, Ex. P-l, was prepared by Shri Jai Jai Ram and it was attested by Majid Khan and Nabibux, Motbirs P. W. 1 and P. W. 2, respectively and the Sulfa was taken in possession by the Excise Inspector. A complaint was made in the court of the Magistrate, First Class, Sikar by Shri Jai Jai Ram under sec. 54(a) of the Excise Act. The accused admitted that Sulfa was recovered from the room which was in his tenancy, but he said that that room was lying vacant and that he was in actual possession of a room on the ground floor of the same house. The learned Magistrate after recording prosecution evidence came to the conclusion that the accused was found in possession of an intoxicating drug in the shape of Charas and convicted him under sec. 54(a) and sentenced him as mentioned in the beginning of this judgment. The accused Shabbirali went in appeal but his appeal has been dismissed by the learned Additional Sessions Judge, Sikar. He has come in revision to this Court. The main point which has been argued by Shri O.C. Chaterjee, learned counsel for the applicant Shabbirali, is that under sec. 54(a) an accused can be convicted only it he imports, exports, transports, manufactures, collects, sells or possesses any excisable article. It was argued that Sulfa has nowhere been taken to be excisable article under the Excise Act, I was referred to sub-sec. (4) of sec. 3 which gives the definition of the excisable article. It is argued that under clause (ii) of sub-sec. (4) of sec. 3, any intoxicating drug is an excisable article, but intoxicating drug as defined in sub-sec. (14) of sec. 3, does not include Sulfa. Charas is of course included as an intoxicating drug as defined in the Excise Act, but there is no evidence on the record to show that Charas and the Sulfa are one and the same thing. It was argued that the lower courts have simply presumed that Sulfa and Charas are one and the same thing and, therefore, the learned Magistrate has used the word 'Charas' only through-out in respect of the article recovered from the house of the accused. It was argued that the learned trying Magistrate was not justified without any evidence on the record to hold that Sulfa and Charas are one and the same thing. It was further argued that the learned Additional Sessions Judge has simply taken sulfa to mean Charas because the learned Public Prosecutor said so before him. It was argued that without any evidence or without any other material, the learned Additional Sessions Judge was not justified in holding Sulfa to be the same thing as Charas simply on the words of the learned Public Prosecutor. On behalf of the State Mr B. C. Chaterjee conceded that it could not be found from the record that Sulfa and Charas are one and the same thing. He however, said that Sulfa is also an intoxicating; drug and, therefore, it was an excisable article within the meaning of sub-sec. (4) of sec. 3 of the Excise Act and so its possession was culpable under sec. 54(a) of the Excise Act. I have considered the arguments of both the learned counsel. It has been admitted by the learned counsel for the State and 1 also find on an exam-ination of the record that there is no evidence in this case to show that Sulfa and Charas are one and the same thing. Of the prosecution witnesses Majid Khan P. W. 1 has said that Sulfa about 2 Tolas in weight was recovered from the house of Sabbirali. He nowhere says that Charas was recovered nor does he say anywhere in his statement that Sulfa and Charas are one and the same thing. Nabibux P. W. 2 has also stated that Sulla was recovered from a room of Shabbirali. He too nowhere says that Charas was recovered nor does he say that Sulfa and Charas are one and the same thing. The most important witness from the prosecution point of view Shri Jai Jai Ram also says that Suifa weighing about a Tola was recovered from the room of Shabbirali. He too nowhere says that Charas was recovered nor does he say that Sulfa and Charas are one and the same thing. In his cross-examination he says that Sulfa is prepared from a plant which is about 7", and 8", in height and out of that plant a sort of gum (Mada) is extracted which is railed Sulfa. He further says that he does not know the name of the plant from which such sort of gum is extracted. Ramswarup is the the last witness who was examined by the court. He too has nowhere said that Charas was recovered from the house of Shabbirali. He said that Sulfa was recovered but he nowhere stated that Sulfa and Charas are one and the same substance. Thus there is utter absence of evidence to show that Charas was recovered from the possession of the accused. The evidence is also conspicuous by its absence with regard to the fact that Sulfa and Charas are the two names of the same substance. It may be that they may be one and the same substance, but it cannot be presumed. There should be evidence to that effect. I have not been referred to any authoritative work also from which I may infer that Sulfa and Charas are the two names of the same substance. The only Hindi English dictionary which is made available to me in the library of this Court is the Bhargava's Hindi-English Dictionary of the year 1946. In this dictionary Charas has been translated as an intoxicating drug prepared from the flowers of hemp and Sulfa has been translated as small balls of tobacco smoked in a pipe without placing a tile on it. (pp. 367 and 1030) respectively. Under sub-sec. (4) of sec, 3, excisable article means and includes an intoxicating drug and under sub-sec. (14) of the same section intoxicating drug means inter alia 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 and transport. Now the definition of an intoxicating drug in sub sec. (14) docs not show that it means Sulfa also. There is nothing in the evidence to show in this case that Sulfa is the resin obtained from the Indian hemp plant which has not been submitted to any manipulations other than those necessary for packing and transport. Even the Excise Inspector does not say so. He simply says that Sulfa is extracted from a plant the name of which he does not know. I do not understand how, on an evidence like this, it can be held that Sulfa is an excisable article within the meaning of sub-sec. (4) of sec. 3 of the Excise Act. The learned lower courts have run with the idea that Charas and Sulfa are one and the same thing. The learned trying Magistrate has not touched the word 'Sulfa' even with a pair of tongs in his judgment. He thought it fit to use the word Charas alone in respect of the article recovered from the house of the accused. The learned Additional Sessions Judge has taken as an ipse dixit what fell from the mouth of the Public Prosecutor during the course of his arguments. Cases are not decided on what the counsel of the one or the other party says during the course of arguments. They are decided on evidence and on law. 1 am really surprised why the learned Additional Sessions Judge should have held that sulfa and Charas are one and the same thing simply on the words of the Public Prosecutor when there was neither any evi-dence nor any authority to show that Sulfa and Charas are the two names of one and the fame substance. If the Government intends that Sulfa or, other substances besides those given in clauses (i) to (iii) of sub-sec. (14) of sec, 3 should be excisable articles in the Excise Act, they have got the power to declare so by notification in the Rajasthan Gazette (vide clause IV in sub-sec. (14) of sec. 3j, but unless this is done, it cannot be said that anything which is not covered by clauses (i) to (iii) and is not declared to be excisable article under clauses (4) is an excisable article. 1 am unable to maintain the conviction and sentence of the accused Shabbirali in this case on this ground alone, The application for revision is allowed, the conviction and sentence of the accused Shabbirali are set aside and he is acquitted. Under the circumstances he need not surrender to bail. The fine if paid shall be refunded to him. ;