JUDGMENT : Narasimham, C.J. - This is a petition to revise the appellate judgment of the Sessions Judge of Ganjam-Boudh maintaining the conviction of the Petitioner u/s 47(w) of the Bihar and Orissa Excise Act for being in possession of out still liquor in excess of the permissible quantity and the sentence of two weeks, rigorous imprisonment and a fine (sic) Rs. 50/- passed by a third Class Magistrate of Boudh. 2. On receipt of previous information, the Excise party raided the house of the Petitioner on the 9th December 1954 at about 3-30 P.M. in the company of P.Ws. 1 and 3. P.W. 2 and the Choukidar were seen sitting in the cow-shed of the Petitioner with a leaf-thola from which they had drunk liquor immediately before the arrival of the Excise party. The Petitioner was not found in the house. His wife and younger brother aged 15-20 years were present there. One of the rooms of the house, known as Dhaba Ghar, was found locked up and the Petitioner?s wife and younger brother denied all knowledge of the key of the Jock of that room. The Excise party then broke the lock, entered the room and recovered three earthen pots containing liquor. The Excise Sub-Inspector (P.W. 5) did not measure the liquor carefully, nor did he test the strength of the liquor by the usual hydrometer test. He approximately estimated the total quantity of the liquor to be about 29 bottles. The maximum permissible quantity of liquor that may be possessed by a person in that area was only two bottles, i.e. 48 ounces, and hence the Petitioner was sent up for trial for having been found in unauthorized possession of liquor in excess of the permissible limit. Though the liquor was seized and sealed no test of its strength was made on any subsequent occasion nor was any accurate measurement made of the volume. This omission has been taken advantage of by the Petitioner in support of his argument and unless the prosecution affirmatively establishes that the liquor found in his possession was of the requisite strength no offence was made out. But on scrutiny of the notification of the Board of Revenue, No. 3390-VIII.30/52-Ex., dated the 22nd October 1952, I find that so far as out still liquor is concerned no strength is prescribed by the Government. But on scrutiny of the notification of the Board of Revenue, No. 3390-VIII.30/52-Ex., dated the 22nd October 1952, I find that so far as out still liquor is concerned no strength is prescribed by the Government. Hence, irrespective of the strength of the liquor if the volume found in possession of any person is in excess of the permissible limit, the offence u/s 47(a) of the Bihar and Orissa Excise Act may be said to have been made out. 3. But there still remains the main question as to whether the prosecution has established affirmatively that the liquor that was seized was out still liquor he Excise Sub-Inspector (P.W. 5) is not very definite on this point. He said in cross-examination: A conviction in a criminal case cannot be based on such an uncertain opinion like this. There are various methods of testing liquor, with a view to find out whether it is outs till liquor or distillery liquor, the most common test being the litmus test. It does not appear that this test was applied and there is no explanation from the Excise Sub-Inspector for this serious omission. The liquor also was not measured with a proper measuring bottle and his estimate of the volume is admittedly an approximate estimate. The Excise Sub-Inspector who, after previous intimation, had made proper preparations for raiding the house with a view to ascertain if there was unauthorized liquor therein or not, should not have acted in such a negligent manner. The only two other witnesses who prove the nature of the liquor were P.Ws. 2 and 3. P.W. 2 just drank a portion of it and said it was wine. P.W. 3 from mere smell stated that it was liquor, but these two witnesses are quite incompetent to say whether it was out still liquor or distillery liquor. 4. For the aforesaid reasons I am not satisfied that the prosecution has proved the case against the Petitioner beyond reasonable doubt. The conviction and sentence are set aside and the Petitioner is acquitted.