JUDGMENT

K.N. Seth, J. - The appeal by the State of U. P. is directed against the order of acquittal passed by the learned Sessions Judge, Gorakhpur, in an appeal filed by Munni Lal against his conviction under section 7/60 of the U.P. Excise Act. The two revisions noted above have been filed by two of the accused persons who were convicted and sentenced to nine months' imprisonment and a fine of Rs. 1,000/-- each under section 60 of the U. P. Excise Act. The order of the trial court was con- firmed in appeal by the learned Sessions Judge.

2. According to the prosecution case, on September 13, 1967 at about 5.15 a.m. an Ambassador Car No. U.S.B. 4418 was stopped by Sri R.C. Chatterji, Excise Inspector at the Temporary Excise Barrier near Nausar Toddy shop, police station Bolipur, district Gorakhpur. Moti Lal, Sheo Bachan, Kanhaiya Lal and Chhedi alias Sami Ullah were found in the oar which was driven by Sami Ullah. There was one Abdul Gaffar also in the oar, who absconded during the trial and his case was sop orated. On search of the car 128 kilograms of illicit Ganja was recovered. The oar belonged to Munni Lal. He along with the accused named above were sent up for trial under section 60 of the U.P. Excise Act.

3. The defence of Munni Lal was that his casual driver Sami Ullah came to him along with an Overseer Abdul Gaffar and told him that the wife of Abdul Gaffar was ill and as he had been transferred to Banaras, he had to take his wife also with him. He felt pity and lent his car to the Overseer through Chhedi alias Sami Ullah. He denied having anything to do with the smuggling of the Ganja or with the knowledge that the oar would be used for such an illegal purpose.

4. Kanhaiya Lal took the defence that he was ill on the relevant date and on getting the news that the car had been stopped at the Excise Barrier, he went there in a Rickshaw and as soon as he got down, he reprimanded Chhedi for wing the car for an illegal work and at that stage lie was arrested by the Inspector. He denied that he was in the car or had any knowledge of the Ganja in it. Sheo Bachan admitted the recovery of the Ganja as well as his knowledge about it.

5. The learned Magistrate convicted Munni Lal "u/S. 7/60 and the remaining accused under section 60 of the U. P. Excise Act and sentenced them to nine months rigorous imprisonment and a fine of Rs. 1,00)J-. In default of payment of fine, the defaulter were to undergo further simple imprisonment for two months. The car was ordered to be confiscated to the State.

6. On appeal the learned Sessions Judge set aside the conviction of Munni Lal on the finding that there was no evidence of any knowledge to the appellant about the smuggling and to hold him responsible for his car being used for smuggling illicit Ganja. His conviction and sentence were accordingly set aside. The order about the confiscation of the Ambassadar Car No. U. S. B. 4418 was also set aside and it was ordered to be returned to Munni Lal. The appeals filed by other accused persons were dis- missed and their conviction and sentence maintained.

7. The State has challenged the order of acquittal of Munni Lal. Apart from the fact that no evidence has been pointed out indicating that Munni Lal had any knowledge about the smuggling of Ganja, the appeal must fail on another ground. In the present case it is admitted that the article alleged to have been recovered from the oar was not sent for any chemical analysis in order to establish that the article was really Ganja. In Ram jas v. State, 1970 A.W.R. 852 has been held that an accused person cannot be convicted for an offence of having been found in possession of the alleged Canja on the testimony of the Excise Inspector on the basis of sight and smell test and that it was necessary for the prosecution to lead evidence based on chemical analysis in order to establish that the article alleged to have been recovered from the accused was really Ganja. The only evidence on the record of the pre