Only the District Excise Officer and his superiors are competent to grant licenses and permits under the Rajasthan Excise Act and the Rules.

1. - This is a criminal appeal against the judgment of the Judicial Magistrate, First Class, Jhunjhunu dated the 31st October, 1974, by which the trial Magistrate acquitted the accused respondents, namely Taj Mohd. and Yasin, under Section 56(a) of the Rajasthan Excise Act, 1950.

2. The facts of the case as narrated by the appellant in the memorandom of appeal and reiterated during the argument are as under:

3. The prosecution case in brief is that one Vishser Singh Gram Panchayat, Jasarapur, Dev Road, Incharge out post Sarhad sent a report on 29th March, 1970 to the effect that the accused Taj Mohd s/o Ahmed Bux resident of Gram Jasarapur and another accused Yasin s/o Jumerdi Khan s/o Jasarpur P.S. Khetari are selling liquor illegally and these are dealing in illicit liquor that the liquor is loaded in their jeep. It was further stated there in that there is no contract for selling liquor for the said village. On this information Bhagwan Singh Head Constable Incharge out post Narhad seized the illicit liquor from the accused persons and thereafter the challan was filed in the court of Judicial Magistrate first class, Jhunjhunu. The respondents-accused were charged under Section 54(a) of the Rajasthan Excise Act, 1950.

4. The prosecution produced four witnesses, namely, Nathu Singh (PW 1), Jawala Prasad (PW 2. Bhagwan Singh (PW 3), Babulal (PW 4) who supported the prosecution case, but the accused produced in defence the special permit in the name of one Shri Madhu Ram. It was signed by Assistant Excise Officer and the learned Magistrate acquitted the accused of charge as mentioned above.

5. Mr. Ajay Purohit, the learned Public Prosecutor, during the arguments pressed the following points (i) that the accused persons had no right to carry the illicit liquor at Deo Road or Narhad because the accused persons were not permit holder, (ii) that the learned Magistrate has failed to realise the alleged permit holder Matadeen has not come in the witness box, and no books of that contract have been produced in the evidence : (iii) that the learned Magistrate has failed to realise that accused Taj Mohd. has, himself, confessed that 53 bottles of 'plain' and two bottles of 'gulab' were seized from bis possession at Deo Road and hence the accused Taj Mohammed was not entitled to acquittal (iv) that the learned Magistrate has not considered according to Section 16 of the Rajasthan Excise Act, 1950, that the permits for movement of these goods could have been given by District Excise Officer and hence Ex. P. 1 document cannot be an any avail to the case of the accused persons.

6. It is to be noted that in this case, there is no dispute that 53 bottles of 'plain' and two bottles of 'Gulab' liquor were seized from the possession of the accused-respondents, Taj Mohd at Dev Road. The principal ground for acquittal is that a permit (Ex. P. 1) has been produced by the accused. The Magistrate was also of the opinion that sale of liquor has not been proved.

7. Shri B.L. Tibrewal, the learned Counsel for the respondents-accused, supported that judgment of the trial court and, controverted the submission of Shri Purohit. According to him, it is not very material, whether the District Excise Officer is alone competent to issue such permits, because what is to be seen, is the mens rea. In view of this permit (Ex. D.I), there was no mens rea of the accused and, therefore, he should be acquitted, argued Shri Tibrewal.

8. I have carefully considered the rival contentions of the learned Counsel for the parties. It is proved on record that both, Taj Mohammed, and Yasin, the respondents were in possession of this liquor, which was 53 bottles in all and they were not having licence of the country liquor for village-Dev Road, where they were caught red handed. Even if it is assumed that the sale has not been proved, the possession of the liquor to the extent of 55 bottles is, it self, an offence.

9. The only question which remains to be considered, is whether