Guman Mal Lodha, J.
1. This is a criminal appeal against the judgment of the Judicial Magistrate, First Class, Jhunjhunu dated the 31st October, 1974, by which the trial Magistrate acquitted the accused respondents, namely Taj Mohd. and Yasin, under Section 56(a) of the Rajasthan Excise Act, 1950.
2. The facts of the case as narrated by the appellant in the memorandom of appeal and reiterated during the argument are as under:
3. The prosecution case in brief is that one Vishser Singh Gram Panchayat, Jasarapur, Dev Road, Incharge out post Sarhad sent a report on 29th March, 1970 to the effect that the accused Taj Mohd s/o Ahmed Bux resident of Gram Jasarapur and another accused Yasin s/o Jumerdi Khan s/o Jasarpur P.S. Khetari are selling liquor illegally and these are dealing in illicit liquor that the liquor is loaded in their jeep. It was further stated there in that there is no contract for selling liquor for the said village. On this information Bhagwan Singh Head Constable Incharge out post Narhad seized the illicit liquor from the accused persons and thereafter the challan was filed in the court of Judicial Magistrate first class, Jhunjhunu. The respondents-accused were charged under Section 54(a) of the Rajasthan Excise Act, 1950.
4. The prosecution produced four witnesses, namely, Nathu Singh (PW 1), Jawala Prasad (PW 2. Bhagwan Singh (PW 3), Babulal (PW 4) who supported the prosecution case, but the accused produced in defence the special permit in the name of one Shri Madhu Ram. It was signed by Assistant Excise Officer and the learned Magistrate acquitted the accused of charge as mentioned above.
5. Mr. Ajay Purohit, the learned Public Prosecutor, during the arguments pressed the following points (i) that the accused persons had no right to carry the illicit liquor at Deo Road or Narhad because the accused persons were not permit holder, (ii) that the learned Magistrate has failed to realise the alleged permit holder Matadeen has not come in the witness box, and no books of that contract have been produced in the evidence : (iii) that the learned Magistrate has failed to realise that accused Taj Mohd. has, himself, confessed that 53 bottles of 'plain' and two bottles of 'gulab' were seized from bis possession at Deo Road and hence the accused Taj Mohammed was not entitled to acquittal (iv) that the learned Magistrate has not considered according to Section 16 of the Rajasthan Excise Act, 1950, that the permits for movement of these goods could have been given by District Excise Officer and hence Ex. P. 1 document cannot be an any avail to the case of the accused persons.
6. It is to be noted that in this case, there is no dispute that 53 bottles of 'plain' and two bottles of 'Gulab' liquor were seized from the possession of the accused-respondents, Taj Mohd at Dev Road. The principal ground for acquittal is that a permit (Ex. P. 1) has been produced by the accused. The Magistrate was also of the opinion that sale of liquor has not been proved.
7. Shri B.L. Tibrewal, the learned Counsel for the respondents-accused, supported that judgment of the trial court and, controverted the submission of Shri Purohit. According to him, it is not very material, whether the District Excise Officer is alone competent to issue such permits, because what is to be seen, is the mens rea. In view of this permit (Ex. D.I), there was no mens rea of the accused and, therefore, he should be acquitted, argued Shri Tibrewal.
8. I have carefully considered the rival contentions of the learned Counsel for the parties. It is proved on record that both, Taj Mohammed, and Yasin, the respondents were in possession of this liquor, which was 53 bottles in all and they were not having licence of the country liquor for village-Dev Road, where they were caught red handed. Even if it is assumed that the sale has not been proved, the possession of the liquor to the extent of 55 bottles is, it self, an offence.
9. The only question which remains to be considered, is whether the respondents-accused were having the possession of 56 bottles of country liquor at Dev Road under licence granted by any competent Excise Officer under the Rajasthan Excise Act and the Rules. It is nobody's case that the respondents-accused had a licence for this area of Dev Road-Sarhad.
10. The defence is that they had a permit which is Ex. D. 1. This permit was not produced at the time the accused were caught with the bottles. The accused-respondents were caught on 29th March, 1971. If they had permit as produced later, there was no reason why it was not shown at the time of seizure of the bottles and arrest of the respondent-accused. Under the scheme of Rajasthan Excise Act and the Rules, the District Excise Officer and his superiors alone are competent to grant the licence and permits. The Assistant Excise Officer is not competent to grant any permit under any provisions of the law. Even after, Shri Purohit has taken this special ground in the memo of appeal and argued this point, Shri Tibrewal was unable to show any provision of law from the Rajasthan Excise Act and the Rules or notifications, empowering the Asst. Excise Officer to grant permits. It is not without significance that the Asst. Excise Officer did not come in evidence, nor accused-respondents could dare to call him in evidence. Rule 18 of the Rajasthan Excise Rules reads as under:
18. Permit for possession beyond limit of retail sale--(1) Any person desirous of obtaining a permit under Sub-section (1) of Section 19 for the possession of Indian made foreign liquor or country liquor in excess of the limit for retail sale may make an application in writing stating:
(a) The quantity required and the days on which it is be purchased;
(b) The occasion which renders the purchase necessary;
(c) The vendor from whom the purchase is to be made;
(d) The place where the liquor is to be consumed;
(2) The application under Sub-rule (1) shall be made to the District Excise Officer concerned, who may, unless there are reasons to the contrary, grant the permit;
(3) Such permit, if granted shall be prepared in triplicate, the original and the duplicate shall be given to the applicant, who shall present the original before the vendor from whom the liquor is to be purchased. The vendor shall, after compliance, return it to the officer who granted it. The duplicate shall remain with the consignment in the transit from the shop to the place of consumption.
11. I am, therefore, convinced that not only the alleged permit, Ex. D. 1, is not a permit in the eye of law, but it is obvious that it has been procured later on to create a false defence after the accused respondents Were caught red handed.
12. Shri Purohit further submitted that this permit is in the name of Patodia, However, I am not inclined to enter int6 that controversy.
13. Shri Tibrewal's contention that mens rea has not been proved in view of Ex. D. 1, is of no substance, because selling in illicit liquor without a licence or valid permit, implies mens rea and such a plea is not available looking to the nature of the offence and facts & circumstances, mentioned above.
14. The result of the above discussion is, that both the respondents-accused were wrongly acquitted and their acquittal deserves to be set aside. Consequently, the appeal is accepted. Both, Taj Mohammed son of Ahmed Bux, resident of mohalla Choydaran P S. Jhunjhunu, & Yasin s/o Jumarddin resident of Jasrapur P.S. Khetari. (Jhunjhunu), the respondents accused are found guilty under Section 54(a) of the Rajasthan Excise Act, 1950 and they are sentenced to undergo six month's rigorous imprisonment. The trial would now take steps to get the respondents-accused arrested and send them in jail for undergoing sentence as indicated above.
15. A copy of this judgment should be sent along with a photostat copy of the permit (Ex. D. 1) to the Excise Commissioner, Rajasthan, for making as inquiry about Ex. D. 1, the unauthorised permit.