( 1 ) THIS revision petition is directed against the judgment and order dt. 18-6-1977 passed by the Sessions Judge, Karwar, in Criminal Appeal no. 14/1977, confirming the judgment and order dt. 25-3-1977 passed by the Judicial Magistrate, First Class, Karwar, Camp at Ankola,, in A. Crl. Case No. 210/1976, coonvicting the petitioner under S. 34 of the Karnataka excise Act (hereinafter called the Act) and sentencing him to suffer RI for three months and to pay a fine of Rs. 200 and in default of payment of fine to suffer RI for a further period of one month.

( 2 ) THE prosecution case was that on 14-12-1975 at about 9 P. M. near Ankola Bus Stand the petitioner was found carrying two handbags one containing six Brandy bottles with labels: "t. Subakia Industries, Goa", in all worth Rs. 90, and the other containing three bottles of coconut Fenny with labels: "coco Finna Pineapple Koneserva", without any permit. It was further alleged that the petitioner was also carrying another brandy bottle concealing the same in his waist, which bore a label with 5 stars and the words "netalikar Goa Liquor Industries",, without any permit. It is said that all those bottles were seized under a panchanama Ext. P1, and then the contents of one bottle was sent to the Chemical Examiner for analysis. It appears, the Chemical examinar on examination found that the contents of that bottle contained "39. 76% v|v at 60 F", vide his certificate Ext. P5. The plea of the petitioner was denial simpliciter. .

( 3 ) THE learned Magistrate rejected the plea of the petitioner that there was ill-will between him and PW. 1 who according to the prosecution first apprehended him with those bottles near the bus stand and on that account he was falsely involved; on the basis of the evidence produced by the prosecution he came to the conclusion that the petitioner was found transporting ten bottles of brandy without any valid permit at the time and place alleged by the prosecution, and, as according to him the quantity of brandy found in the possession of the petitioner was in excess of the quantity permitted by Rule 21 of the Karnataka Excise (Possession, Transport, Import and Export of Intoxicant) Rules, 1967, (hereinafter referred to as the Rules), he found him guilty under. S. 34 of the Act and convicted and sentenced him as aforementioned. The learned Sessions Judge agreeing with the conclusions of the learned magistrate confirmed the said conviction and sentence and dismissed the1 appeal preferred by the petitioner. Now, the question that arises for consideration in this revision petition is whether the said conviction and sentence are legal and can be sustained.

( 4 ) GRANTING that all those ten bottles were recovered from the possession of the petitioner at the time and place alleged by the prosecution, there is no legal evidence to show that each of those bottles contained brandy as alleged. It is undisputed that the contents of only one of those bottles was sent to the Chemical Examiner for analysis, and it is not known why the contents of other nine bottles were not sent to him. Merely because those bottles bore those labels, it is difficult to come to the conclusion and hold that they contained brandy or some other intoxicant. The learned Magistrate as also the learned Sessions Judge appear to have proceeded on the assumption that even the other nine bottles contained brandy, relying upon the labels found on them. But there is no warrant for such assumption. It was incumbent on the prosecution to place convincing and cogent evidence on record to show that those other bottles also contained brandy or other intoxicant. Such evidence is wanting here. Solely relying upon the labels, it is hazardous to hold that what was cotained in those nine bottles was either brandy or some other intoxicant. In this connection, I may refer to the following observations of this Court in State of Mysore v. Mohamed Jaffar , 1966 (2) Myslj. 91. " Now from the evidence of PW. 3, it

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