In the absence of proof that the remaining 57 bottles contained liquor, the petitioner could not be convicted of possessing more than the permitted quantity.

1. - This petition under Section 482 Cr.PC is preferred against the order dated 2-12-1987 by which, the Additional CJM, Dausa ordered to frame charge against the petitioner under Section 19/54 of the Rajasthan Excise Act.

2. An information was received on 31-10-1986 at Police Station, Dausa that in car No. RST 1326 some liquor is being transported. That car was checked at Octroi-post Agra Road, Dausa and search was made by the SI Mohammed Irshad. In the dicky of the car 5 cartoons containing 60 bottles in all were found. After taking sample from the bottles and completing the usual investigation the Police submitted challan against the petitioner under Section 19/54 of the Rajasthan Excise Act and the learned CJM, framed charge which has been challenged here.

3. The learned Counsel for the petitioner argued that it is disputed that the petitioner was carrying 60 bottle of foreign liquor in 5 cartons in the car when he was checked at the out-post by the Sub-Inspector and according to him sample from three bottles was taken by the SI. No sample was taken from other bottles which he was carrying. The samples taken by the Sub-Inspector were sent for Chemical examination and the samples were found to be of liquor. Therefore, the argument is that the petitioner was found in possession of three bottles of liquor from which the sample was taken and it is not disputed about this fact. It was argued that from remaining 57 bottles no sample was taken and there is no proof whether those bottles contained liquor or not. So it was argued that according to Section 14 of the Rajasthan Excise Act after obtaining pass from the authority concerned a person can carry or transport a particular number of bottles of liquor. Then vide Notification dated 3011-1961 the State Government prescribed the limit to transport the liquor. Sub-Clause-B of that Notification reveals that 4 units could be the maximum quantity for export or transport without permit. Thus, a person can transport without obtaining any permit from the concerned authority 4 units of liquor. It has been further clarified in the Note and according to this Note one unit for the purposes of this notification shall be construed as equal to any of the following of the metric equivalents thereof namely:

[i] One quart bottle of spirit, or

[ii] Two quart bottles of wine, or

[iii] Nine quart bottles fermented liquor of strength exceeding two percent of alcohol by volume, or

[iv] Twenty seven quart bottles of formented liquors of strength not exceeding two percent of alcohol by volume.

4. Thus a person can transport 4 units without permit. One unit equal to two quart bottles, means a person is permitted to carry or transport 8 quart of bottles without any permit. What is the meaning of the quart is to be seen now. According to the Oxford Dictionary; quart means measuring of capacity equal to two pints or about 1,14 litres. Thus, 8 quarts are equal to 9.12 litres. One litre decidedly is more than a bottle so in any case a person can carry or transport without permit about 9-10 bottles of liquor. In the present case the sample was taken from three bottles only and on chemical examination it was found that these samples are of liquor. No sample was taken from other 57 bottles and it cannot be said or presumed that those 57 bottles also containedl iquor. It was the duty of the S.I. who checked the car to take the sample from each bottle i.e. from 60 bottles and then the samples should have been sent for chemical analysis whether these samples are of liquor or of other liquid. But now the position is very clear and it is not disputed that only three samples from three bottles were taken. Those samples were found of liquor it means that the petitioner was carrying only three bottles of liquor which is permitted according to the Rajasthan Excise Act. No pass is necessary for transporting the liquor upon 10 bottles while the petitioner was found in possession of three bottles of liquor only as is clear