B.N. Misra, J.
1. The petitioner has been convicted under Section 47(a) of the Bihar and Orissa Excise Act, 1915 (hereinafter referred to as the 'Act') and sentended to undergo rigorous imprisonment for seven days and to pay a fire of Rs. 50/-, in default to rigorous imprisonment for ten days.
2. According to the prosecution, the petitioner owns a grocery shop where he sells fire-wood, vegetables, cocoanut, etc. On 22. 8. 1979 at 6.30 p. m. P. W. Sub-Inspector of Excise, searched the petitioner's shop and found three bottles containing I/D liquor and nine paper packets each of which contained half a gram of non-duty-paid Ganja. P. W. 1 seized the aforesaid incriminating articles under seizure list Ext. 1. After completion of investigation, P. W. 1 submitted prosecution report against the petitioner.
3. At the trial three witnesses were examined on behalf of the prosecution. As already noted, P. W. 1 had conducted the search. P. Ws. 2 and 3 are the seizure witnesses. No witness was examined on behalf of the defence. The defence plea is one of denial. In his statement recorded under Section 313 of the Code of Criminal Procedure, the petitioner has stated that no Ganja or liquor was seized from his shop, that the concerned shop belonged to his father and that on the day of occurrence he had gone to Bhadrak in connection with a case. The learned Magistrate who tried the case found the petitioner guilty under Section 47(a) of the Act for having been in possession of non-duty-paid Ganja, convicted and sentenced him as noted above. After dismissal of the petitioner's appeal before the learned Sessions Judge, he has moved this Court and prayed that the conviction and sentence should be set aside.
4. In his examination-in-chief P. W. 1 has stated that after complying with, all the formalities he searched the shop of the petitioner in the presence of P. Ws. 1 and 2 and recovered nine paper packets each containing half a gram of non-duty-paid Ganja kept in a tin Dibba M. O. I, and three glass bottles each containing-600 mililitres of I/D liquor marked M. Os. II, III and IV. P. W. 1 seised and sealed the incriminating articles also in presence of Ps Ws. 2 and 3. In his cross-examination P. W. 1 has . stated that he knew the petitioner from before as the petitioner's father had a Ganja shop one year prior to the occurrence. P. W. 2 has stated that the concerned shop belonged to the father of the petitioner and the incriminating articles had been seized on the road in front of the said shop. P. W. 3 has stated that the incriminating articles had been seized from the shop of the petitioner. Thus, according to P. W, 2 the concerned shop from which the seizure had been made belonged to the petitioner's father and according to P. W, 3, the said shop belonged to the petitioner himself. This is a major discrepancy in the depositions of P. Ws. 2 and 3 and in the absence of any further material regarding the identity of the owner of the concerned shop, the benefit of doubt should go to the petitioner.
5. Further in his evidence P. W. 1 has stated that he had seized non-duty-paid Ganja. Besides this solitary statement of P. W. 1, there is no other evidence of material before the Court to show that the seized Ganja was non-duty-paid. P. Ws. 2 and 3 have not stated anything on the question whether the Ganja recovered was duty-paid or non-duty-paid. Even in the seizure list, Ext. 1, under column II describing the seizure of the Ganja, it is merely noted that Ganja was seized in nine packets; there is no mention as to whether the Ganja was duty-paid or non-duty-paid. There is no evidence that the seized Ganja had been sent for chemical examination. In 31 (1965) CLT 172-State v. Satyanarayan Mallick it was observed :
'It is conceded by the learned standing counsel that a consumer is entitled to keep in his possession three tolas (35 grams) of duty-paid Ganja with impunity. In this case, the Ganja recovered was two tolas and fourteen annas which comes within the quantity exempted. The only point for consideration is whether the Ganja recovered is duty-paid or non-duty-paid. If it is on the latter category, the accused is not entitled to retain any quantity of it. The prosecution evidence on this aspect of the case is wholly unsatisfactory. P. W. 3 does not depose that the Ganja recovered is non-duty-paid Ganja. Neither the Ganja was sent for chemical examination. In the seizure list, all that is mentioned is that 22 packets of Deshi(country) Ganja were recovered. This by itself does not establish that the Ganja was non-duty paid Ganja. The position thus is that there is no prosecution evidence that non-duty paid Ganja was recovered from the possession of the accused. Though the learned Magistrate was not alive to this aspect of the case, the charge under Section 47(a) read with Section 55 of the Bihar and Orissa Excise Act must fail on this ground.'
In this case also there is no trustworthy evidence that the Ganja seized from the petitioner was non-duty-paid.
6. Few the reasons stated above, I hold that the prosecution has failed to bring home the charge under Section 47 (a) of the Act against the petitioner. This revision is accordingly allowed. The conviction and sentence of the petitioner are set aside and he is acquitted of the charge. Fine, if paid, shall be refunded. The bail-bonda are discharged.