S.C. Agrawal, J.
1. This appeal has been filed by the State under Section 378(1) of the Cede of Criminal Procedure, 1977 against the judgment dated 30th May, 1977, passed by the Munsiff & Judicial Magistrate, 1st Class, Bhadra, in Cr. Case No. 1065/74, whereby the respondent Ramkaran was acquitted of the charge under Section 16/54(d) of the Rajasthan Excise Act.
2. The case of the prosecution is that on 7th May, 1974 Madanlal, Excise Inspector, Mundaria made a search of the house of the respondent in village Mundaria and during the course of said search two pitchers (earthen pots) full of 'lahan' were found concealed in the badha (outer compound wall) of the house and the sample of the said 'lahan', on analysis, Was found to contain alcohol. The prosecution in support bf its case, examinee Madan lal (PW. 1), the Excise Inspector who conducted the seared and made the recovery, Balaram (PW. 2) the attesting witness to the recovery memo (Ex. P.2) and Jassu Khafl (PW. 3) the guard in the Excise' Department and who had accompanied Madan Lal to the house of the respondent at the time of the search. Balaram (PW. 2) did not support the prosecution case and he was declared hostile. Thus the prosecution case depends upon the evidence of Madan Lal (PW/1) and Jassu Khan (PW/3) and the documents, viz. memo of information (Ex. P.1) Recovery Memo (Ex. P.2), Site Plan (Ex. P.3), Memo of Arrest (Ex. P.4) end the report of the Chemical Examiner and Public Analyst (Ex. P.5).
3. The respondent pleaded that no recovery was made from his house as alleged by the prosecution and in support of the aforesaid defence, he produced one witness viz., Kashiram (DW/1).
4. The Munsiff & Judicial Magistrate in his judgment aforesaid has believed the testimony of Madan Lal (PW/1) and Jassu Khan (PW/3) and has found that two pitchers containing 'lahan' were recovered from the house of the accused. The Judicial Magistrate has disbelieved the evidence of Kashiram DW/1. Having found that the pitchers containing 'lahan' were recovered from the house of the petitioner, the Judicial Magistrate held that neither PW/1 nor PW/3 had, deposed with regard to the seal which was put on the sample of the Lahan which was taken out of the said pitchers that the prosecution had failed, to adduce evidence about the person who had carried the said sample for chemical examination to Jaipur and that the prosecution had also failed to prove that the seal had remained intact till then and that in the absence of the aforesaid evidence, it was not established that the lahan which was found in the pitchers recovered from the housed of the accused contained alcohol On that view, the Judicial Magistrate acquitted the respondent Ramkaran.
5. The learned Public Prosecutor, in support of the appeal has submitted that the Judicial Magistrate, having found that the pitchers containing 'lahan' had been recovered from the possession of the respondent, erred in acquitting him on the view that the lahan found in the said pitchers did not contain alcohol The submission of the learned Public Prosecutor is that the Judicial Magistrate ought to have drawn a presumption about regularity of official acts Under Section 114 of the Evidence Act and should have presumed that the sears on the sample had not been tampered with till the sample reached the chemical examiner.
6. In my view, the aforesaid contention urged by the learned Public Prosecutor cannot be accepted in view of the decision of the Supreme Court in Ukha Kolhe v. State of Mahazashtra AIR 1963 SC 1531, wherein the Supreme Court, while dealing with a case under the Bombay Pichibition Act, has observed:
The method of storage of the phial when it was in the custody of the police officers are of its dealings therewith when it was in the custody of the special messenger have been left in obscurity. But the evidence does disclose that the phial was sealed in the presence of Dr. Rote, and the report of the Chemical Examiner also disclosed that they had opened a phial which was sealed and that the seal was intact, with the device, Medico-Legal Bombay. Evidence regarding the dealing with the phial since it was sealed aid it was submitted for examination of the Chemical Examiner may appear to be formal; but it has still to be ltd in a criminal case to discharge the burden which lay upon the prosecution.
In the said case, the Supreme Court had remanded the matter to the Sessions Judge for recording additional evidence In view, of the aforesaid decision, the judicial Magistrate, when he found that the evidence with regard to the sealing of the sample & as to how it had been dealt with was lacking, ought to have recorded such evidence. Following the aforesaid judgment of the Supreme Court. I would have remanded the matter for recording additional evidence in this regard but I find that no purpose would be served by the said remand in as much as on the basis of the evidence on record it cannot be held that the two pitchers containing the 'lahan' were recoverd from the possession of the petitioners.
8. There is no dispute that possession which is punishable under Section 54(d) of the Rajas than Excise Act must be conscious possession. In the present case the recovery memo (Ex. P.2) shows that the pitchers containing 'lahan' were found concealed in the 'Badha' (compound wall) of the respondent. The site plan (Ex. P.3) shows that the 'Badha' is open and any person can have access to it without the knowledge of the respondent. It is quite possible that somebody else may have concealed the pitchers in the 'Badha' without the respondent having any knowledge of the same. In these circumstances it cannot be said that the two pitchers which were recovered concealed in the ' Badha'; of the house of the respondent were recovered from the possession of the respondent and, therefore, the question whether the 'lahan' found in these pit hers contained alcohol or not is of no consequence.
9. The result is that the appeal is dismissed and the order dated 30th May, 1977 passed by the Munsiff & Judicial Magistrate, 1st Class, Bhadra, acquitting the respondent of the charge under Section 16/54(d) of the Rajasthan Excise Act is affirmed.