( 1 ) THIS revision petition is directed against the judgment and order dt. 18-6-1977 passed by the Sessions Judge, Karwar, in Criminal Appeal no. 14/1977, confirming the judgment and order dt. 25-3-1977 passed by the Judicial Magistrate, First Class, Karwar, Camp at Ankola,, in A. Crl. Case No. 210/1976, coonvicting the petitioner under S. 34 of the Karnataka excise Act (hereinafter called the Act) and sentencing him to suffer RI for three months and to pay a fine of Rs. 200 and in default of payment of fine to suffer RI for a further period of one month. ( 2 ) THE prosecution case was that on 14-12-1975 at about 9 P. M. near Ankola Bus Stand the petitioner was found carrying two handbags one containing six Brandy bottles with labels: "t. Subakia Industries, Goa", in all worth Rs. 90, and the other containing three bottles of coconut Fenny with labels: "coco Finna Pineapple Koneserva", without any permit. It was further alleged that the petitioner was also carrying another brandy bottle concealing the same in his waist, which bore a label with 5 stars and the words "netalikar Goa Liquor Industries",, without any permit. It is said that all those bottles were seized under a panchanama Ext. P1, and then the contents of one bottle was sent to the Chemical Examiner for analysis. It appears, the Chemical examinar on examination found that the contents of that bottle contained "39. 76% v|v at 60 F", vide his certificate Ext. P5. The plea of the petitioner was denial simpliciter. . ( 3 ) THE learned Magistrate rejected the plea of the petitioner that there was ill-will between him and PW. 1 who according to the prosecution first apprehended him with those bottles near the bus stand and on that account he was falsely involved; on the basis of the evidence produced by the prosecution he came to the conclusion that the petitioner was found transporting ten bottles of brandy without any valid permit at the time and place alleged by the prosecution, and, as according to him the quantity of brandy found in the possession of the petitioner was in excess of the quantity permitted by Rule 21 of the Karnataka Excise (Possession, Transport, Import and Export of Intoxicant) Rules, 1967, (hereinafter referred to as the Rules), he found him guilty under. S. 34 of the Act and convicted and sentenced him as aforementioned. The learned Sessions Judge agreeing with the conclusions of the learned magistrate confirmed the said conviction and sentence and dismissed the1 appeal preferred by the petitioner. Now, the question that arises for consideration in this revision petition is whether the said conviction and sentence are legal and can be sustained. ( 4 ) GRANTING that all those ten bottles were recovered from the possession of the petitioner at the time and place alleged by the prosecution, there is no legal evidence to show that each of those bottles contained brandy as alleged. It is undisputed that the contents of only one of those bottles was sent to the Chemical Examiner for analysis, and it is not known why the contents of other nine bottles were not sent to him. Merely because those bottles bore those labels, it is difficult to come to the conclusion and hold that they contained brandy or some other intoxicant. The learned Magistrate as also the learned Sessions Judge appear to have proceeded on the assumption that even the other nine bottles contained brandy, relying upon the labels found on them. But there is no warrant for such assumption. It was incumbent on the prosecution to place convincing and cogent evidence on record to show that those other bottles also contained brandy or other intoxicant. Such evidence is wanting here. Solely relying upon the labels, it is hazardous to hold that what was cotained in those nine bottles was either brandy or some other intoxicant. In this connection, I may refer to the following observations of this Court in State of Mysore v. Mohamed Jaffar , 1966 (2) Myslj. 91. " Now from the evidence of PW. 3, it becomes clear that the only substances which were subjected to an analysis by him were the substances in the hot-water bags, the kerosene oil tins and the brown bottle. He did not analyse the contents of the brandy bottles or the beer bottles. He thought it unnecessary to examine the contents of those bottles since according to him there were cartons on those bottles which declared the contents and that those cartons indicated that what was contained in some of the bottles was brandy and in the other beer. It has also been explained to us that PW. He thought it unnecessary to examine the contents of those bottles since according to him there were cartons on those bottles which declared the contents and that those cartons indicated that what was contained in some of the bottles was brandy and in the other beer. It has also been explained to us that PW. 3 was satisfied with the fact that the original seals of the manufacturers on those bottles made it unnecessary for PW. 3 to open those bottles and to analyse their contents i do not think that was a correct thing to do. If there is a carton on a bottle and that carton says that what is contained in the bottle is brandy or beer, the mere fact that the carton says does not mean that what is contained in the bottle is either brandy or beer. Further. there is no evidence that the seals which were found on the bottles"were the original seals of the manufacturers. Even if those seals are the seals of the manufacturers, no one can be sure that what is contained in the bottle is what the carton represents it to be. The carton might say that it is brandy and it is not possible to eliminate the possibility of the bottle containing nothing more than ordinary water. So, it was not right on the part of PW. 3 to desist from subjecting the contents of the supposed brandy and beer bottles to an analysis. " it is, therefore, obvious that the prosecution has failed to establish that even the other nine bottles not sent to the Chemical Examiner contained brandy or some other kind of intoxicant. ( 5 ) EVEN granting that the bottle sent to the Chemical Examiner for analysis contained brandy, it is difficult to hold that the petitioner is guilty of any offence. The prosecution has failed to establish that the quantiy found in that bottle was in excess of the quantity permitted by rule 21 of the Rules. Even according to the learned Sessions Judge, each bottle contained 650 M/s. i. e. , much le?s than the quantity permitted by the said Rule under which a person is permitted to possess or transport 2. 3 litres without any permit. That being the case, the petitioner cannot be said to have contravened the provisions of S. 34 of the act. 3 litres without any permit. That being the case, the petitioner cannot be said to have contravened the provisions of S. 34 of the act. Indeed no evidence is placed on record to show that each bottle contained 650 Mls. of brandy, and it is difficut to comprehend how the learned Sessions Judge could say that it contained 650 Mls. The Courts below obviously have gone wrong in assuming that each bottle contained brandy without the requisite proof in that regard. In the view i take, the conviction and sentence cannot be sustained. ( 6 ) IN the result, for the reasons stated above, this petition is allowed, the conviction and sentences passed on the petitioner are set aside, and he is acquitted of the said offence. The fine amount if recovered shall be refunded to him. His bail bonds shall stand cancelled. --- *** --- .