The prosecution must prove beyond a reasonable doubt that the accused was in actual or constructive possession of the illicit liquor in order to establish a conviction under Sections 54-A and 54-D of the Rajasthan Excise Act, 1950.

1. - This revision petition is directed against the judgment of learned Sessions Judge, Sri Ganganagar dated 17.6 81. The learned Sessions Judge has sustained the conviction of accused petitioner Chinda Singh under Section 54-A and sentenced him till rising of the Court and fine of Rs. 100/-, in default to further undergo one months simple imprisonment and under Section 54-D sentenced to undergo six months rigorous imprisonment and fine of Rs. 200/-, in default to further undergo two months rigorous imprisonment.

2. The facts of this case are that on 11-7-76 at about 6 p.m. the Excise Officer made a search of the house of the petitioner and it is stated that one bottle of illicit liquor was found in the corner of a room and one pitcher of Lohan, one pipa, one babri and one lid having hole in it and a tube fitted in the said lid were recovered from the house of the petitioner. Sample of liquor was taken in one quarter bottle and the sanhple of Lohan was taken into a separate quarter bottle. The samples were sent for chemical examination to the Chemical Analyst. According to the report of the Chemical Analyst, the sample of liquor contained liquor and sample of Lohan also contained Lohan in it. Excise Department submitted challan in the Court of Judicial Magistrate, Sri Ganganagar. During the trial, prosecution examined five witnesses in all and one witness was examined on behalf of the accused After trial, the Trial Judge convicted the accused-petitioner and sentenced under Section 54-A till rising of the Court and a fine of Rs. 100/-, in default one months simple imprisonment and under Section 54-D to undergo six months rigorous imprisonment and a fine of Rs 200/-, in default two months rigorous imprisonment. Against the judgment of Judicial Magistrate, appeal was preferred before learned Sessions Judge, Sri Ganganagar who rejected the appeal of accused petitioner and confirmed the sentence. Being aggrieved, the accused petitioner has filed revision petition in this Court.

3. Learned counsel for the accused petitioner Shri Garg submitted that Courts below were not justified in convicting the accused petitioner, the finding in respect of possession which is contrary to the evidence on record. He also submitted that samples were not the same as they were taken and sealed on the spot. They were of white colour while during the trial they were found of diff rent colour and that was admitted by (PWI) Dalpat Singh and (PW5) Hansram. For possession he S-Not same and sealed-common independent witness supports argued that Patrolling Officer did not know the house of Chinda Singh and it was on the basis of Excise Inspector Hansram (PW5). Hansram relied on two motbirs namely Hazara Singh (PW2) and Pyara Singh (PW3). In their statements before the Court they submitted that the seized articles were found in a common house which is occupied by Chinda Singh accused petitioner, Makhan Singh and Chanan Singh. That, Hansram. Inspector also placed reliance on the statements of Motbiran that the articles seized in question were in possession of Chinda Singh. Patrolling Officer relied on Inspector. Mr. Garg, therefore, pointed out that the finding arrived at by the Courts below is contrary to the statements on record and perverse, that finding can be interfered by this Court. For that he relied on 1986 RLW 493 (Ram Vilas v. State) and 1972 AIR Supreme Court 949 (Ram Ekbal v. Jaldhari Pandey ).

4. Learned Public Prosecutor, Shri Panwar submitted that in revision petitions High Court should not interfere on the finding of facts.

5. I heard the rival submissions and carefully perused the material on record. (PWI) Dalpat Singh, states that he did not know the house of Chinda Singh. The recovery was made in the house at the instance of Inspector Hansram. Inspector, Hansram in his cross-examination states that the court-yard is common for Chinda Singh and Chanan Singh, the possession of articles seized is supported by Motbiran but when he look i