STATE OF MYSORE Vs. HOSBU KUSH GOWDA

JUDGEMENT

(1.) This appeal is filed by the State challenging the order of acquittal passed by the Sessions Judge, North Kanara, Karwar, in Crl.App.7| l971 which had been filed by the respondent who had been convicted by the Judicial Magistrate, First Class, Karwar, in Crl. Case 655 1970 for an offence under S.34 of the Mysore Excise Act.

(2.) The prosecution case is that in the early morning; of 5th October, 1969 two Constables were on patrol duty and when they were passing in front of Anand Bhavan Hotel in Karwar they saw the respondent-accused proceeding on a cycle. He had one gunny bag. The two Constables collected Panchayatdars and searched the gunny bag in the presence of the Panchayatdars. The gunny bag contained a big glass jar and that jar contained illicitly distilled liquor. A sample was taken and put into a separate bottle and sealed. The contents were measured and they were found to be two gallons of illicit liquor. A 'Panchanama' was recorded. The articles were seized and a charge sheet was filed stating that the accused had committed an offence punishable under Sec.34 of the Mysore Excise Act. The respondent pleaded not guilty and urged that he was not found in possession of these articles.

(3.) Both the lower Courts have, on facts, held that the prosecution has satisfactorily established that the two Constables had found this respondent having possession of the said quantity of liquor and that that liquor contained an intoxicant as certified by the Assistant Chemical Examiner. They have further on held that the respondent had in his possession about two gallons of intoxicant. The learned Magistrate has held that presumption under S.40 of the Mysore Excise Act was available to the prosecution and therefore, the offence had been established. The learned Sessions Judge has held that the presumption was not available to show that the intoxicant was unlawfully manufactured i.e., illicitly distilled and the prosecution had no evidence to establish that the said intoxicant was illicitly distilled and therefore, no conviction could be passed for the offence under S. 34 of the Mysore Excise Act.