Judgment Kamla Sahai, J. 1. The petitioners are Directors of a firm known as Harbals Private Limited Company which carries on the business of preparing Ayurvedic medicines at B. M. Das Road in Patna Town. The Excise Inspector (P. W. 3) searched the premises of the petitioners firm and, on the 19th June, 1960, seized 21 phials of different kinds of preparations as samples. He sent them to the Excise Chemist (P. W. 4) for analysis. P. W. 4 submitted a report (exhibit 8), and thereafter P. W. 3 submitted a prosecution report (exhibit 6) against the petitioners. A Magistrate exercising first-class powers tried the petitioners, and has convicted them under Section 7 read with Sec. 6 of the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 (hereinafter to be referred to as the Act). The 3rd Additional Sessions Judge of Patna has made this reference under Sec. 438 of the Code of Criminal Procedure with the recommendation, that the petitioners conviction under Section 7 of the Act and the sentence imposed upon them be set aside. 2. Sec. 6 of the Act gives power to the Central Government to regulate the production or manufacture of dutiable goods or of specified component parts so that they may be produced or manufactured only in accordance with the terms and conditions of a licence granted under the Act. The Central Government in the Ministry of Finance (Department of Revenue) issued notification No. S. R. O. 1295, dated the 27th, April, 1957, whereby it prohibited the production or manufacture of dutiable goods except under a licence granted under the provisions of the Medicinal and Toilet Preparations (Excise Duties) Rules, 1956, which will henceforth be referred to as the Rules. 3. The prosecution case against the petitioners is that they have contravened the provisions of the above notification by engaging in the production and manufacture of dutiable goods. The trying Magistrate has not specified the clause of Section 7, under which the petitioners are guilty; but it appears that he has applied Clause (a) of that section. The learned Additional Sessions Judge was of the opinion that the Magistrate may have applied either Clause (a) or Clause (b); but I do not think that there is any case under Clause (b) because the learned Standing Counsel has not pointed out any case of evasion of payment of any duty of excise against the petitioners. The learned Additional Sessions Judge was of the opinion that the Magistrate may have applied either Clause (a) or Clause (b); but I do not think that there is any case under Clause (b) because the learned Standing Counsel has not pointed out any case of evasion of payment of any duty of excise against the petitioners. The only question, therefore, which arises for consideration is whether the petitioners conviction under Section 7 (a) of the Act is correct. 4. The Excise Chemist found all the 21 phials, sent to him by P. W. 3 as samples, to contain alcohol above 2 per cent proof spirit. He has stated in his evidence that it is possible to distinguish chemically between self-generated alcohol and rectified spirit which is added that he did not make any attempt to find out whether the alcoholic contents of the samples were self-generated alcohol or rectified spirit added from outside. Thus, the learned Additional Sessions Judge is right in saying that there is no clear evidence that the samples contained alcohol added from outside, and that the alcoholic contents may well have been self-generated. The Excise Chemist (P. W. 4) has further admitted that the list of Ayurvedic preparations given at page 54 onwards of the Manual of Medicinal and Toilet Preparations published by the Ministry of Finance (Department of Revenue), which contains the description of preparations containing alcohol which are capable of being consumed as ordinary alcoholic beverages, does not contain the names of medicines, samples of which were seized by P. W. 3. There is also no evidence on behalf of the prosecution to prove that any of the samples was capable of being consumed as ordinary alcoholic beverage. It has, therefore, to be held, as found by the learned Additional Sessions Judge, that it has not been proved that the samples seized from the petitioners contained preparations which were capable of being consumed as ordinary alcoholic beverages. 5. The question which has now to be decided is whether any of the samples seized from the petitioners come within the definition of dutiable goods. This expression has been defined in Clause (c) of Sec.2 of the Act as under: " dutiable goods means the medicinal and toilet preparations specified in the Schedule as being subject to the duties of excise levied under this Act". This expression has been defined in Clause (c) of Sec.2 of the Act as under: " dutiable goods means the medicinal and toilet preparations specified in the Schedule as being subject to the duties of excise levied under this Act". It will be seen that, in order that a preparation may come within the definition of dutiable goods, two conditions are required. One is that it must be specified in the schedule. The other is that it must be shown in the schedule as being subject to duties of excise. Sec.3 lays down that duties of excise would be levied on all dutiable goods, manufactured in India, at the rates specified in the schedule. The schedule at page 9 of the Manual contains several articles. The articles with which I am concerned in this case may be quoted as follows : Item Description of dutiable goods. Rate of duty, No. 2. Medicinal and toilet preparation not otherwise specified containing alochol :- (i) Ayurvedic preparations Nil. containing self-generated alcohol, which are not capable of being consumed as ordinary alcoholic beverages (ii) Ayurvedio preparations Rupees three per containing self-generated gallon. alcohol, which are capable of being consumed as ordinary alcoholic beve-rages (iii) All others. Rupees five per gallon of the strength of London proof spirit. 6. The schedule appears to me to have been very badly drafted. While the heading description of dutiable goods tends to show that all the articles specified in that column are dutiable goods, the third column shows that no duty is chargeable on the article described in item 2(1). As I have already said, the definition of dutiable goods shows that goods must be subject to duty before they can come within the definition. When the rate of duty as shown against item No. 2 (i) in the schedule is nil, the second condition is obviously not fulfilled. The learned Standing Counsel has urged that the words "subject to the duty of excise" in Sec.2 (c) should be read as capable of being subjected to the duties of excise. I do not think that that is possible. The words used in the section clearly indicate present liability to duty and not liability to duty in future. The learned Standing Counsel has urged that the words "subject to the duty of excise" in Sec.2 (c) should be read as capable of being subjected to the duties of excise. I do not think that that is possible. The words used in the section clearly indicate present liability to duty and not liability to duty in future. That being so, there is no escape, in my judgment, from the conclusion that the article described in item No. 2 (i) of the schedule does not come within the definition of dutiable goods. 7. I have already indicated that there Is nothing to prove that the alcoholic contents of the samples seized from the petitioners were not self-generated. I have also mentioned that it has not been proved that those samples are capable of being consumed as ordinary alcoholic beverages. Those samples, therefore, appear to me to come undoubtedly within the description of item 2 (i) of the schedule. I, therefore, hold that they do not come within the definition of dutiable goods. 8. I may also repeat that the medicines contained in the samples are not named in the list of preparations containing alcohol capable of being consumed as alcoholic beverages given at page 54 onwards of the Manual. Further, I may refer to Rule 66 of the Rules. The first paragraph, with which I am only concerned in this case, runs : "Classification of preparations containing self-generated alcohol for purpose of levy of duty. Ayurvedic preparations containing self-generated alcohol in which the alcohol content does not exceed 2 per cent. proof spirit shall be deemed to be non-alcoholic and no duty shall, therefore, be levied on such preparation. Where the percentage of proof spirit is in excess of 2 per cent., duty will be leviable under item 2 (ii) or 2 (i) of the Schedule to the Act according as the preparations are capable of being consumed as ordinary alcoholic beverage or not;" Item 2 (i) has been given in this rule; but the third column of that item in the Schedule shows that no duty is leviable upon the article described in that item. It is, therefore, difficult to understand why it has been said in the rule that duty will be leviable under item 2 (i) of the Schedule. It is, therefore, difficult to understand why it has been said in the rule that duty will be leviable under item 2 (i) of the Schedule. In any case, this rule cannot lead to any conclusion that item 2 (i) comes within the description of dutiable goods. 9 For the reasons given above, I hold that the goods seized from the petitioners have not been proved to be dutiable goods. Consequently, the petitioners conviction under Section 7 (a) of the Act cannot be sustained. 10. Another ground which the learned Additional Sessions Judge has taken is that some irregularities were committed by the Excise Inspector (P. W. 3) in seizing the samples from the petitioners premises. It is unnecessary to consider this point because I have already held that the petitioners conviction cannot be maintained for the reasons which I have given. 11. In the result, I accept the reference, and set aside the conviction and sentence recorded against the petitioners.