SHANKAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) ACCUSED Shankar was convicted under Section 4(2) of the Rajasthan Prohibition Act, 1969 and was sentenced to seven months' rigorous imprisonment with a fine of Rs. 500/ -in default of the payment of fine to further undergo one month's simple imprisonment by the learned Munsif and Judicial Magistrate, Jalore by his judgment dated December 29, 1976. The accused went in appeal. His appeal was dismissed and his conviction and sentence were maintained by the learned Sessions Judge, Jalore, vide his judgment dated December 15, 1978. The accused has, come -up in revision.

(2.) IN brief, the case set -up by the prosecution is that on October 14, 1970, a search of the accused's house was taken by the Excise Inspector Mr. Ganga Shanker (PW 6). Six gunny bags containing 133 bottles of liquid -contents were found in his house. Two gunny bags had twenty bottles each, three gunny bags had 25 bottles each while in one, there were eighteen bottles. In the gunny bag which had 18 bottles, eight were alleged to be the plain wine while ten of the rose brand. From this gunny bag, which contained eighteen bottles, one bottle of plain wine and one bottle of rose -brand were sealed to be sent to the Chief Public Analyst for chemical examination. The remaining 131 bottles were also sealed. The seizure memo Ex. P 1 was prepared in the presence of the Motbirs. The Public Analyst, vide his report Ex. P 6 found the liquid of both the bottles sent to him to be of liquor. The accused was thereafter prosecuted, convicted and sentenced, as mentioned above.

(3.) THERE is no dispute that out of six gunny bags two contained twenty bottles each, three contained 25 bottles each and one contained 18 bottles were found in the house of the accused, of which he was in possession. There is no dispute that only two bottles found in the bag containing 18 bottles of liquid, were sent for chemical examination, to the Chief Public Analyst. The remaining 131 bottles were not sent for chemical examination nor samples were taken from these 131 bottles for chemical examination. In these circumstances, the inference drawn by both the courts below that all the 133 bottles found in possession of the accused contained liquor cannot be maintained. The finding of the Courts below that since two of these bottles contained liquor, the remaining 131 also contained liquor, is based purely on surmises and conjectures. Such an approach cannot be appreciated and up -held.