Bapna,j. - (1.) THIS is a revision by Jamwant Singh son of Bhawani Singh of Bhawad, Police Station Malarna Doongar, who has been convicted under sec. 54 (a) and (d) of the Rajasthan Excise Act, 1950 (No. II of 1950 ).
(2.) THE case of the prosecution is that on the 14th June, 1955, the Excise inspector, Roopdan accompanied by certain excise officials, searched the house of the accused and recovered four bottles containing illicit liquor, three pitchers containing 'pass' used for manufacture of liquor, one Nal and Babri instruments for the manufacture of liquor. THE accused denied the recovery of these articles and further pleaded that the house from which the alleged articles are said to have been recovered, belonged to him and his brother and was not in his exclusive possession. THE learned Munsif Magistrate of Gangapur convicted the accused under sec. 54 (a) and (d) of the Excise Act for possessing excisable articles to wit, four bottles of illicit liquor and three pitchers of 'pass' and for keeping in possession implements and apparatus for the purpose of manufacturing excisable articles to wit, the Nal and Babri. He was sentenced to undergo three months rigorous imprisonment and to pay a fine of Rs. 210/ -. , in default to undergo simple imprisonment for three months by the judgment dated the 16th January, 1956 On appeal the learned Additional Sessions Judge, Gangapur, held that the 'pass' not having been chemically examined, was nut proved to be an excisable article. He, however, upheld the finding as to the recovery of illicit liquor and Nal and Babri from the possession of the accused. THE conviction and sentence were maintained. THE accused has come in revision against the judgment of the Additional Sessions Judge, Gangapur, which is dated the 21st May, 1956. Learned counsel contended that the recovery of bottles from the house of the accused had not been established and further that the recovery of illicit liquor or Nal or Babri from the possession of the accused has not been established. It was contended in the first instance with respect to the recovery of the liquor that the two Motbirs, Bhura P. W. 2 and Nanagram P. W. 3, did not support the prosecution. Each one of them has said that the excise officials were sitting at a distance of two chains from the house of the accused and two bottles from a Thela were shown to them and something was written on a paper to which they were asked to affix their thumb impressions, which they did. Nanagram added that he was told by the excise officials that these bottles were recovered from the house of the accused. There is, however, the other evidence of Roopdan, P. W. 1, Excise Inspector, Abdulla, Excise Peon, P. W. 4, and Nanusingh, clerk of the Excise Department, P. W. 6, who formed the raiding party. They have deposed, that these bottles were recovered from the house of the accused. Abdulla said that after giving a search to the Inspector, he went inside the house, while the other persons remained in the verandah, and brought out four bottles from the room in view of the other persons. Roopdan and Nanusingh have similarly deposed to the recovery of the four bottles from the house of the accused. The recovery list, Ex, P. 1, shows the recovery from the Kham house of the accused. This document bears the thumb impressions of the two Motbirs. No reason has been given by the accused why the excise officials should have concocted the case against him if the fact: were as stated by the Motbirs. The statements of the Motbirs are in contradiction to their attestation of the search memo. I accept the finding of the two courts that the four bottles said to be of alleged liquor were recovered from the house of the accused. As regards Nal and Babri, the two Motbirs have not said anything about their recovery. The three excise officials have contradicted each other in material particulars. Roopdan said that the Nal and Babri pieces were recovered at the instance of the accused from the back of the house of the accused. Abdulla said that the accused himself brought the Babri and Nal from his bara at the back of his house and gave it to the excise officials. Nanu Singh said that the accused gave information to the excise officials that he had thrown the Babri and the Nal and on his pointing out the place, the Babri pieces and the Nal were recovered. There is material discrepancy as to whether it was the accused who brought these articles himself or he gave only information as a result whereof the recovery was made by the excise officials. In view of the discrepant evidence of the excise officials, the finding that the Nal and Babri were recovered from the possession of the accused cannot be sustained. The conviction under sec. 54 clause (d) for possessing implements and apparatus for the purpose of manufacturing excisable articles, cannot be upheld It was next contended that the house from which the recovery of the four bottles of alleged illicit liquor is said to have taken place was not in the exclusive possession of the accused. The accused stated that the house was the joint house of himself and his brother Devi Singh and the two lived in that house. Possession under sec. 54 of any excisable article must be found to be the exclusive possession of the accused. The prosecution evidence laid to prove that the house from which the bottles were recovered, was in occupation of the accused exclusively, is scanty. Roopdan, Inspector, said that he raided the house of the accused and on search, found four bottles of illicit liquor. The two Motbirs Bhura, P. W. 2, and Nanagram. P. W. 3, stated in cross-examina-tion that the accused and his brother Devi Singh lived together. Abdulla P. W. 4 stated that before the Excise Inspector decided to enter the house of the accused, he had asked some village people and came to the conclusion that it was the house of the the accused and that he alone lived in the house. This statement indicated that the Inspector or Abdulla did not know the house from before to be of the accused, and if it was, as the result of the enquiry made by the Inspector at the site that the Inspector came to that conclusion. If so more evidence should have been led to prove that the house as a whole or the room in particular from which the bottles were recovered was in occupation of the accused and none else. Nanu Singh P. W. 6 said that the house of the brother of the accused was of the accused himself. He, however, admitted that he had gone to the village on that day for the first time. The witness could not have any personal knowledge because according to him, he went to the village for the first time at the time of the raid. The accused led two witnesses in defence, namely, Motiramand Brindaban. Motiram said that the accused and his elder brother Devi Singh lived in the one and the same house. He is a close neighbour and Patel of the village. He said that there is one Gowadi in which there are three rooms. The Poli is common. Of the three rooms one faces north, another faces west and the third faces east. He said that the room facing north was in the occupation of Devisingh. It may be mentioned that it was the north facing room from which the bottles were recovered. The other Witnesses Brindaban also said that the two brothers lived in one house, but that their rooms were separate. The room of the accused was said to be facing west. The two courts have committed error in interpreting the statement of Brindaban. What the witness purported to say was that in the Gowadi there were three rooms and the two brothers had separate rooms for their use. The word used is ghar and that has been interpreted by the two courts as meaning a house and it was taken that the witness said that the two brothers had separate houses. What the witness meant was that the two brothers had separate rooms, in a Gowadi or single house. The word ghar is in criminately used some time for a house and some time for a room. This witness was also a Patel in the village. The evidence of the villagers is that the particular room from which the bottles were recovered, was not in the possession of the accused. The contrary evidence of the prosecution is not based on any personal knowledge of any of the prosecution witnesses. The prosecution thus failed to prove that the room from which the bottles were recovered was in the sole occupation of the accused, and consequently the accused cannot be held guilty of possession of an excisable article to witillicit liquor. It was also contended by learned counsel for the accused that the offence under sec. 54 (a) was alleged to be the possession of an excisable article in contravention of any provision of the Act or the rule or order made or of Pass granted. The rule in the present case said to have been transgressed, is in the following terms - "notification No. 4163 In exercise of the powers conferred by subclause (iii) of clause (e) of sec. 42 of the Rajasthan Excise Act, 1950, the Excise Commissioner with the previous sanction of the Government is pleased to make the following rules, namely. . . . . . No country liquor retail licence shall sell liquor of the varieties and strength specified below for a price in excess of that shown against each variety - Varieties of liquor Strength Price per quarter bottle 1. Jag Mohan 10. U. P. Rs. 10/- 2. Kesar-Kisturi 5 U. P. Rs. 6/- 3. Rose 20 U. P. Rs. 4/- 4. Orange 25 U. P. Rs. 4/- 5. Plain 35 U. P. Rs. 3/- 6. Plain (as supplied to hill tracts of Udaipur Division ). 60 U. P. Rs. 1/- This shall take effect from 1st April, 1952. " This Notification obviously only purports to fix the price of liquor of particular variety which can be charged by a licensee, It does not lay down the strength or quantity in excess or of below which any liquor shall not be possessed by any person. The evidence of Mahabir Sahai (P. W. 5) proves that the strength of the liquor found in the bottles was different from the strength of the liquor usually sold by the Government licensees. This may be so but the offence is not the possession of a liquor of a different strength thin what is sold by the Government licensee, but the offence is the possession of any liquor in contravention of any rule which may have been made by the Excise Commissioner fixing the strength or quantity in excess of or below which the liquor shall not be possessed by any person. Unless, therefore, the Excise Commissioner has fixed the strength or the quantity of liquor by any notification with the previous sanction of the Government, the possession of liquor of a strength different from what is sold does not amount to an offence. The Notification as stated earlier only binds a licensee to charge a particular price in respect of a particular kind of liquor. Both, therefore, on merits and on the question of law, this revision must succeed. The revision is allowed, the judgment of the Munsif Magistrate, Gangapur dated the 16th January, 1936, confirmed by that of the learned Additional Sessions Judge, Gangapur on the 21st May, 1956 is set aside and the accused is acquitted. He is on bail and need not surrender. The fine if paid will be refunded to him. .;