MEHTAB SINGH Vs. STATE

JUDGEMENT

(1.) THE petitioner has been convicted under Section 48 of the Excise Act and has been sentenced to pay a fine of Rs. 50/- by the Subordinate Magistrate, Jammu. The appeal before the Sessions Judge against the conviction and sentence was dismissed by him.

(2.) THE prosecution case was that the petitioner owned a tea and soda water shop. The shop was raided by the Inspector of Excise Order 176-1957 in the course of which two bottles of liquor were recovered from the shop. According to the prosecution one bottle containing three-fourth liquor was recovered from a door way leading into the inner apartment of the house of the petitioner and a bottle containing same liquor was recovered from inside a tumbler kept under a chowki in the shop. The petitioner in his statement under Section 342, Cr. P. C. stated that so far as the bottle which contained three-fourth liquor and which was recovered from the door way did not contain liquor at all whereas the bottle which was recovered from beneath the chowki was placed there without the knowledge of the petitioner. From the evidence of the expert it appears that the bottle which was recovered from beneath the chowki contained liquor whereas the expert was not certain the other bottle contained liquor but it smelt like liquor. The definite case of the petitioner was that this bottle contained some medicine and no liquor. Having regard to the evidence of the expert so far as the bottle which was recovered from the door way is concerned it cannot be said that the prosecution has proved that it contained liquor. The petitioner must, therefore, be absolved of the charge with respect to that bottle.

(3.) COMING now to the bottle which was recovered from beneath the chowki the Sessions Judge has observed that the onus was on the petitioner to prove that it was kept beneath the chowki without his knowledge and its possession having been proved there would be a presumption under Section 57 of the Excise Act that the petitioner had committed the offence charged.