1. This is a rule obtained by Birbal against his conviction under Section 61 of the Punjab Excise Act and a sentence of Rs. 25/- fine.
2. On the 7th June 1955 Birbal was seen going towards the house of Sahad who was a co-accused with him and belongs to village Nagar, and Birbal was been going there the next day also and was seen taking liquor from a bottle which was lying there. Devi Ram P. W., a villager of Nagar, thought it a disgrace to the village that outsiders should come and drink in the house of a villager in the presence of the wife and daughter of that particular villager, Suspeotilng something improper because Mst. Gurdasi, who was also an accused person in the case, had a bad reputation, the villagers organised a raid party and they found that Mst. Gurdasi was standing in the verandah and seeing the party she ran away and when they went to the upper storey of the house, Mst. Toti was standing in the verandah and she was asked if there was any outsider in their house she replied there was none. Sahad was also sitting in a corner of the verandah at that time. When they went into the house they found Birbal drinking and there Was a bottle of Rquor, Exhibit P. 1, and a glass Exhibit P. 2, lying pear where he was.
3. The accused persons were Sahad, his daughter Mst. Gurdasi, his wife Mst. Toti and Birbal. Sahad stated that the liquor was in his possession and that nobody else in the house or Birbal had any connection with it. Birbal's defence was that he had been transferred from Lahoul side and had gone to Manali from Kulu and as his things had not arrived he was returning and in the evening went to village Nagar and there he went to the house of Sahad to get his shoes repaired,
The other accused have been acquitted. In my opinion, on this evidence Birbal cannot be convicted even if the story is wholly correct which in my opinion it is not. The possession of the liquor by Birbal has, in my opinion, not been proved, and I would, therefore, allow this petition, set aside the conviction and make the rule absolute.
4. The fine, if paid, shall be refunded.