STATE Vs. SANWAL RAM

JUDGEMENT

(1.) BY his reference dated November 9, 1968 the learned Sessions Judge, Bikaner, recommends that the judgment of the Sub-Divisional Magistrate, Rajgarh, where-by he convicted Sanwal Ram Under Section 64 (a) of the Rajasthan Excise Act, 1950 but award, ed him only a sentence of fine of Rs. 60/. when the law enjoins substantive sentence, be set aside. The reference further recommends that the learned Magistrate be directed to write the judgment afresh. this Court, however, issued a notice to Sanwal Ram to show cause as to why his sentence be not enhanced. He appears and contests his conviction.

(2.) THE facts which we may notice for the disposal, of this reference are that on January 16, 1965, Excise Inspector. Rajgarh, went to the house of the accused along with 2 witnesses and recovered one full-size bottle of liquid, said to contain liquor, and one half-size bottle which had liquid upto a level of one and half inch. He saw the bottles and found the liquids to be liquor of 60. 4 U. P. in the bottle and 48. 1 U. ' P. in the half-bottle. He stated that the liquor recovered was different from the one which the Government distils. The learned Magistrate found the recovery of illicit liquor proved and sentenced Sanwal Ram aa already mentioned.

(3.) MR. R. N. Bishnoi, appearing for the non-petitioner Sanwal Ram, argues that there is no evidence to show that the liquid recover, ed from the possession of Sanwal Ram was an excisable article within the meaning of Section 3 (4) of the Rajasthan Excise Act. The mere statement of the Excise Inspector giving the percentage of the aloohol was an inadmissible opinion. Relying on State of Andhra Pradesh v. Boosenna he urges that in the absence of the scientific evidence no offence was made out against Sanwal Ram, the non. petitioner.