This is a revision against the decision of the Ses­sions Judge, Upper Assam Districts, who confirmed the conviction and sentences passed against the two applicants-Balbir Sing and Inderjit Sing by Sri A. Ahmed, Magistrate, 1st Class at Jorhat. Applicant No. 1 was convicted under S. 61-A of the East Bengal and Assam Excise Act-hereinafter called the Act- and applicant No. 2 was convicted under S. 53 (1) (a) of the Act. Each of these two applicants were sen­tenced to six months' rigorous imprisonment and to pay a fine of Rs. 500/- in default to undergo another period of three months' rigorous imprisonment.

(2) The prosecution case is that on 21-11-54 the Excise Inspector under the authority of a search war­rant searched the Broadway Hotel and restaurant in­cluding .its kitchen and recovered one bottle of Hey-ward's brandy, one kettle containing liquor, one bottle containing about a dram of Heyward's brandy, one bottle containing traces of Heyward's whisky, six empty bottles of Heyward's whisky, rum, brandy, one tumbler with smell of liquor, from the kitchen and from the drawer of the Manager's secretariat table, one bottle containing about 2 1/2 ounces of Hey­ward's whisky was recovered.

There were other documents recovered from the table of the Manager which is not very material. On the recovery of these articles, Inderjit Sing, applicant No. 1, the manager of the hotel John Games, As­sistant Manager and Baldev Raj, the cook were ar­rested. Balbir Sing Bedi. applicant No. 2 later sur­rendered. The charge was denied by the two appli­cants. So far as the factum of recovery is concerned, the Court below believed the story given by the Dep­uty Superintendent of Excise and we do not think that in revision we can interfere with that finding. Balbir Sing is said to be the de facto proprietor of the hotel. The licence of the hotel stood in the name of his minor son-Jasbir Sing Bedi.

(3) The Sessions Judge held that Balbir Sing was the d" lacto proprietor of the hotel although the licence stood in the name of his minor son. He also found that Balbir Sing knowingly permitted the hotel to lie used for the storage of the incriminating articles. The Sessions Judge remarks that it was unthinkable that such a large number of incriminating articles would be kept in the hotel without the conscious knowledge and permission of the de facto proprietor. S. 61A of the Act is as follows :

"Whoever, being the owner or occupier or having the use of any house, room, enclosure, space, vessel, vehicle or place, knowingly permits it to be used for the commission by any other person of an offence punishable under S. 53, S. 54 or S. 55, shall be punished with imprisonment which may extend to two years, or with fine or with both."

Section 53 of the Act runs as follows :

"Whoever, in contravention of this Act or of any rule, notification or order made or issued under this Act, or of any licence, permit or pass granted under this Act, imports, exports, transports, manu­factures possesses or sells any intoxicant other than tari and pachwai shall be punished with imprison­ment which may extend to two years and with fine." The possession of an intoxicant is therefore an of­fence under S. 53 and if the owner or occupier allows the use of the building for storage of these incriminating articles, he would be guilty under S. 61-A. In order therefore to convict Balbir Singh under this section, it was not only necessary to prove that he was the owner of the hotel, but it was fur­ther necessary to prove that he knowingly permitted the building to be used for the commission of an offence. The Sessions Judge, as we have already pointed out, has come to the conclusion that the hotel building was permitted to be used for the storage of incriminating articles.

This inference was drawn by the Sessions Judge from the recovery of a large quantity of intoxicant from the kitchen of the hotel. There is no evidence from which it could be interred that the applicant Balbir S