The presumption of liquor in the remaining bottles was not valid when samples were taken from only four bottles out of 384 bottles.

1. - This revision petition is directed against the judgment of learned Addl. Dist. and Sessions Judge, Raisinghnagar dated 13.5.1982 he has confirmed the order of learned Judicial Magistrate, 1st Class, Raisinghnagar dated 21.8 81.

2. Brief facts which give rise to this petition are that on 30.3.78 one Baney Singh, Excise Inspector along with Harisingh and Excise Party was going towards Jaitsar. They saw a jeep RJR 7565 coming from Jaitsar. On suspicion the jeep was stopped, which was driven by the petitioner and Hansraj and Gurucharan Singh were sitting on the wrong seats. On search 16 bags containing 380 bottles of liquor made by Rajasthan Excise Department were found. After making search memo, all the three persons were arrested and samples from 4 bottles were taken separately. They committed an offence under section 54(a) of the Rajasthan Excise Act as they did not possess valid licence or permit and the jeep was confiscated. After due investigation, the department submitted a challan against all the three persons. The accused persons pleaded not guilty and denied the recovery of liquor. During trial Baney Singh P.W.l, Hari Singh, Jamadar P.W.3, and Chananmal P.W.2, who took the samples, were examined. The learned trial court after conclusion of the trial found all the persons guilty under section 54 (a) of the Rajasthan Excise Act and sentenced them to 1 years rigorous imprisonment and a fine of Rs. 2000/- each and in default of the payment of fine to undergo further rigorous imprisonment tor three months. Aggrieved by this order, the petitioner has preferred this petition.

3. Mr. Manoj Garg, learned counsel for the petitioner has submitted that out of 384 bottles samples from only four bottles were taken. He has also submitted that Ramnath Malkhana Incharge was not examined by the prosecution to prove that sample in custody remained intact and the same were not tempered. He has further submitted that without giving any finding that the seized goods were in physical and conscious possession, particularly when the other two accused persons were acquitted by the same learned Judge on same date though by a separate order, so, petitioners conviction cannot be sustained. He has placed reliance on Babulal v. State of Rajasthan (Cr.L.R. (Raj.) 1980-509) and Shanker v. State of Rajasthan (Cr.L.R. 1985-600) .

4. Mr. V.S. Choudhary, learned Public Prosecutor has submitted that admittedly the petitioner was driving the jeep and was found with the bottles which were made by Rajasthan Excise Department, so it was not necessary to get all these bottles chemically examined as liquor was found in four bottles. Thus, there is no infirmity in the order.

5. I have heard Mr. Manoj Garg, learned counsel for the petitioner and Mr. V. S. Choudhary, learned Public Prosecutor and perused the record. Undoubtedly, it is the duty of the prosecution to prove that the sample of incriminating articles reached the office of the Chemical Examiner in the same condition in which it was taken by the police officer and seal remained intact and not tempered from the date of seizure till it has reached to the chemical examiner.

6. In Shanker v. State of Rajasthan (supra) out of 133 bottles only two bottles containing the liquid were sent to the Chief Public Analyst, Jaipur and it was found that they contain liquor and for the rest it was presumed that they are of the same pattern and size. It was observed that same two bottles containing the liquid were sent for chemical examination to the Chief Public Analyst and on chemical examination they were found to contain the liquor, what can be held is that only two bottles of liquor were found in the possession of the accused. It cannot be positively said that the remaining 131 bottles containing liquid, found in possession of the accused were of liquor.

7. In the instant case, Bhawani Shanker has stated that bottles remained in Malkhana of Police Station. He has further stated that four bottles were sent f