M.C. Jain, J.
1. This appeal is directed against the judgment dated June 10, 3980, passed by the Munsif and Judicial Magistrate, First Class, Sangaria, whereby the respondents were acquitted of the offence under Section 54 of the Rajasthan Excise Act, on merits.
2. In this appeal Mr. H. S. Sandhu, learned Counsel for the accused respondents, raised an objection that the State sought leave on the ground that the Excise Inspector had no authority to file the challan in view of the Division Bench decision of this Court in State of Rajasthan v. Laxman Singh (D. B. Criminal Appeal No. 130 of 1980 decided on 12. 6. 1980) (Criminal Law Reporter (Rajasthan) 557 and leave was not sought on merits. There was no ground challenging the acquittal on merits in the petition for leave to appeal. Hence the appellant State of Rajasthan cannot be allowed to challenge the acquittal in appeal on merits. The respondents were acquitted, firstly, on ground that the identification of the respondents is doubtful, as the occurrence took place at about 2.15 a.m., in the night when it was dark and the accused persons had escaped and, secondly, on the ground that there was third boarder of the Jeep, who was concealing his identity and was sitting near the 13 Kattas of liquor. It was this third boarder of the Jeep, who was found to be in conscious possession of the bottles. Mr. Sandhu placed reliance on a Division Bench decision of the Madhya Pradesh High Court in Parasram Shivlal Tara Sewania v. Laxminarayan and Ors. : AIR1961MP8 , wherein it was observed that where leave has been granted on a particular question, then the scope of the appeal would be limited to that question.
3. Dr. Bhandawat, learned Public Prosecutor, on behalf of the State of Rajasthan submitted that it is true that the leave was sought on the basis of the Division Bench judgment, as contended by Shri Sandhu, but when leave had once been granted, then it is open to the state to challenge the appeal on merits.
4. I am afraid I am unable to agree with the above contention of Dr. Bhandawat. The memo of appeal is completely silent with regard to any ground challenging the merits of the order of acquittal and it appears that the leave had only been sought and appeal had only been preferred on the ground that the Excise Inspector is competent to file the challan in view of the Division Bench judgment. There was no such question involved before the learned Magistrate and it appears that the leave had been granted in view of what has been stated in petition for leave to appeal The State now cannot be allowed to go beyond the point on which the leave had been granted and that point does not at all arise for consideration, as acquittal does not proceed on that basis.
5. This appeal, therefore, fails, and is hereby dismissed.