ORDER
D. Noronha, J.
1. In C. C. No. 2868 of 1973 in the Court of the Munsiff and J. M. F. C., Virajpet, a middle-aged woman by name Maleyali Saroja was convicted for an offence under Section 13 read with Section 32 (as charged) of the Karnataka Excise Act. She was convicted. The sentence was R.I. for a period of three months, and also to pay a fine of Rs. 100 and, in default, S. I. for a further period of fifteen days. The accused went up in appeal to the Sessions Judge, Coorg, Mercara in Criminal Appeal No. 42 of 1974. The appeal was dismissed. Hence this revision petition.
2. Very briefly, the prosecution case is that at about 5 a.m. on 21-8-1973 the Excise Inspection party consisting of P.W. 1, P.W. 2 and another (who has not been examined) seized from the possession of the accused, three bottles of illicit distilled liquor in Virajoet Town in Coorg District
3. Though Sri K. S. Gowrishankar, appearing for the petitioner-accused, was inclined to put forward several attacks against the order of conviction and sentence of the trial court, upheld by the Sessions Judge, he ultimately confined himself only to two aspects which are the most crucial and determine the fate of this case.
4. According to the prosecution, samples from the seized bottles were put into three sample bottles which were sealed and sent to the Chemical Examiner, for his opinion. The opinion of the Chemical Examiner (Assistant Chemical Examiner to the Government of Mysore, Mangalore Region)-Ex. P-4 dated 29-9-1973 – under the caption ‘Result’ is The presence of alcohol was detected.’ As rightly contended by Sri Gowrishankar, the presence of alcohol can be detected in numerous liquids other than illicit distilled liquor, as for instance in medicinal preparations, scents etc. The bald and mechanical opinion of the Chemical Examiner does not take us anywhere and the prosecution cannot derive benefit from it AS being incriminating meterial.
5. Again, as pertinently pointed out by Sri Gowrishankar, the lower Courts and the counsel failed to notice the existence of the Mysore (now Karna-taka) Excise (Possession, Transport, Import and Export of Intoxicants) Rules, 1967. It may be observed that they cannot be blamed for this lapse, since in recent times there has been a spate of Rules and Regulations with which it is extremely hard to keep pace. Rule 21 of the Rules referred to above reeds-
21. Cases where permit or licence is not required:- No permit or licence, under these rules shall be required for the possession or transport of the following quantities of liquors,
LIQUOR QUANTITY
1…
2…
3…
4…
LIQUOR QUANTITY
5. Brandy, Whisky, Gin, Rum, Milk Punch and such other liquors manufactured in Mysore State and manufactured in other places in India and imported to Mysore State…2.3 litres.
6…
7…
8…
9…
6. The prosecution did not seek to establish that the liquid (alleged to be liquor) said to be found in the possession of the petitioner-accused was not liquor manufactured in the Karnataka State or manufactured in other places in India and imported into the Karnataka State. Without any rational basis or foundation, a charge-sheet had been laid describing the liquid, possibly out of force of habit as ‘I. D. Liquor’.
7. Under item 5 Just mentioned above, the liquor that can be possessed without a permit or licence is 2.3 litres. In the instant case, each of the three bottles seized from the petitioner-accused contained, according to the prosecution itself, 750 m. litres, totalling 2.25 litres, and falls short by 2.3 litres. The correctness of this calculation has been confirmed at the Bar.
8. On the two above points, which go to the very root of the case, the petitioner-accused is bound to succeed. The revision petition is allowed. Both the decisions of the courts below regarding the sentence of imprisonment end fine are set aside. The fine paid, if any, by the petitioner-accused shall be refunded to her.
