P. A. KULKARNI, J, J.

( 1 ) HEARD Sri Bhagawan and Sri Koti, Govt. Pleader, on the final merit of the revision.

( 2 ) THIS is a revision by the accused against the order dated January 21, 1988 passed by the I Addi. Sessions Judge, Mysore in Cr1. Appeal No. 79/84 affirming the order of conviction and sentence dated 19th September, 1984 passed by the 11 Addi. C. J. M. in C. C. 6919/82 convicting the accused of the offences under sections 32 and 34 read with sections 14 and 11 of the Karnataka Excise Act, 1965 and sentencing him to undergo R. I. for three months and pay a fine of Rs. 100/- or in default to undergo further R. I. for a period of 15 days.

( 3 ) THE material facts are as under: On 18/12/1981 at about 2 p. m. the accused was caught carrying without a permit 24 bottles of sovereign brandy, 18 bottles of khoday's rum and 6 bottles of amruth rum, each bottle containing 180 m. l. of intoxicant, concealed in a card board box, on the double road, near Ramaswamy Circle bus stop, by the Excise Inspector K. M. Kuttappa of the flying squad in the presence Shivamalla and Narayana swamy, the panchas. The bottles were seized and three bottles were sent for chemical examination. On examination it was found that each one of the bottles contained alcohol to the extent of 42. 8% V/v at 15. 8 C. After completion of the investigation, the Excise Police placed the charge-sheet against the accused.

( 4 ) TO the accusations put, the accused did not plead guilty.

( 5 ) THE prosecution in support of its case examined P. Ws. 1 to 4 and marked Exs. P 1 to P4 and M. Os. 1 to 4.

( 6 ) THE accused denied the prosecution evidence and claimed to be innocent.

( 7 ) ULTIMATELY, the trial court found the accused guilty of the offences under sections 14 and 11 read with sections 34 and 32 of the Karnataka Excise Act, 1965 (hereinafter referred to as the Act) and sentenced him as above. The appeal to the Sessions Judge, by the accused, failed. Hence, the revision by the appellant.

( 8 ) AS the judgment passed by the Magistrate as well as the Sessions Judge are thoroughly detailed, it is not necessary to call for the papers. Hence, the counsel for the petitioner and Sri. Koti, learned Govt. Pleader, were heard in the matter finally and the revision is disposed of accordingly.

( 9 ) ONLY three bottles each containing 180 ml. of liqour was sent to the Chemical Examiner to certify whether the liquid contained alcohol. The Chemical Examiner certified that each one of the three bottles contained alcohol to the extent of 42. 8% V/v at 15. 8 C. Thus, it is proved beyond doubt that the liqour contained in the said three bottles contained alcohol and that no duty was paid for the said liqour. But, what happened to the remaining 34 bottles is not clear. Whether they contained water, liqour or any other liquid is not proved beyond doubt at all. The three bottles put together contained 540 ml. of liqour, which would be less than 2. 3 litres. This court has laid down in Mahapurshadurga v. State of Karnataka, as: Ten bottles were seized from the petitioner, the bottles having labels of brandy etc. The contents of one bottle was sent to the Chemical Examiner, and Tit contained 650 mis. Held, in the absence of evidence to show that the other nine bottles also contained brandy or other intoxicant, the petitioner could not be convicted under section 34 of the Excise Act, by merely relying on the labels on the bottles. Even granting that the bottle sent to the Chemical Examiner contained the brandy, the quantity was less than the quantity permitted under rule 21 of the Rules. Therefore, the conviction passed by the trial court and affirmed by the Sessions Judge runs contrary to the principle laid down by this court in the above said case.

( 10 ) LEARNED counsel Bhagavan then urged that the panch witnesses have not been examined. Both the courts have placed reliance on the decision reported in State v Muragesh. But, it was a case where the panch witnesses were not

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