JUDGMENT

L. Rath, j. - This revision arises out of an appellate order confirming the conviction and sentence of the petitioner in a prosecution under section 47(a) Bihar and Orissa Excise Act (for brevity, the Act) sentencing him to simple imprisonment of six months in addition to a fine of Rs. 50/- in default to a further simple imprisonment of ten days.

2. The prosecution, case is that the petitioner having been found in possession of two earthen pots each containing 3 litres of tari and one Katari for use, was seized from him on 23.4.1981 at 4 a.m. by the' Excise Sub-Inspector, P. W. 1 where after the prosecution report was submitted against him.

3. The defence was of a complete denial.

4. Challenging the conviction, it has been submitted by Mrs. Pad hi that since admittedly the seizure was made at 4 a m. in the morning which is before the sunrise, the petitioner could not be said to be possessing any tad since the Juice of date palm tree becomes tari only after sunrise by a process of fermentation. The juice of the date palm tree obtained before sunrise is even publicly sold by Government as 'Nira' and hence no offence could be said to have been committed by merely possessing s