JUDGMENT Lakshmi Prasad, J. - This is an application in revision from the order dated November 12, 1963 of the Sessions Judge, Aligarh dismissing the applicants appeal against his conviction under clause (a) of Section 60 of the Excise Act. He has been sentenced to pay a fine of Rs. 300/- or in default to undergo two months R. I. 2. I have heard the applicants counsel and the Assistant Government Advocate. The applicant is the Proprietor of Super Standard Chemical Works where medicines are manufactured and as such he admittedly holds a licence for keeping rectified spirit. The applicant has been convicted on the ground that on July 27, 1982 at about 9 p.m. he was found in possession of eight gallons rectified spirit in excess of what he could possess. I have gone through the judgments of the trial court and the appellate court. It appears there has been a lot of confusion in arriving at the particular finding which is the basis of the applicants conviction. The trial court makes in this connection the following relevant observations towards the end of its judgment :- "In view of my above observations I find that the accused was found in possession of 8 gallons of rectified spirit which is in excess of the limit of private possession laid down in para 43 Excise Manual and is thus an offence punishable under Section 60 (a) U.P. Excise Act." The appellate court makes the following observations in this connection :- "I may add that the appellants stock in the Pharmacy was immediately checked by the Excise Inspector who found the stock in order. It, therefore, follows that the 8 gallons of rectified spirit recovered from the appellants possession was in excess of his stock. Consequently his possession thereof was unlawful and illegal." It is not easy to follow as to by what process of reasoning the two courts below arrived at a conclusion, which it was necessary to do in order to convict, the applicant under clause (a) of Section 60 of the Excise Act that the applicant was on the particular date found in possession of a quantity of rectified spirit in excess of what he could possess under the licence held by him. In order to arrive at such a finding it was incumbent on the prosecution to prove the actual quantity which he could possess under the licence and the actual quantity which he was as a result of alleged checking of the stock found in possession of on the particular date. Only when these two figures are known, it is possible to deduce whether or not the quantity in actual possession at the moment exceeded the quantity he was entitled to possess. There is not a shred of evidence to prove that. At any rate the Assistant Government Advocate has entirely failed to point out any such evidence being questioned to do so. In fact the two judgments of the courts below make no mention of any such evidence. It appears that in view of the total denial of the applicant about the alleged possession of eight gallons of rectified spirit and the fact that on a checking of the stock it was found that the quantity of rectified spirit entered in the stock register was in possession of the applicant besides the disputed eight gallons of rectified spirit, the courts below came to the conclusion that he was thereby in possession of excess quantity. At least that is what I could make out from two judgments. If that is the basis of the finding arrived at by the two courts below, it is obvious that the above finding is entirely fallacious and erroneous. As already mentioned, the trial court made a reference to para 43 of the Excise Manual in this connection which appears to me entirely besides the point. The applicant being a licencee, the question whether he was in possession of any quantity in excess of what he could possess under the licence has to be decided with reference to the quantity which he is actually found in possession at any particular moment. In my view, the applicants conviction cannot be sustained even for a moment, having regard to the evidence that has been adduced in the case. 3. I accordingly allow the application in revision and set aside the applicants conviction and sentence under Cl. (a)of Section 60 of the U.P. Excise Act. Fine, if paid shall be refunded to the applicant.