JUDGMENT - C.T. DIGHE, J.:---This is an application in revision by the original accused against his conviction under section 65(e) of the Bombay Prohibition Act. He was sentenced to undergo R.I. for six months and to pay a fine of Rs. 500/- in default to undergo R.I. for one month by the Judicial Magistrate, First Class, Pimpalgaon and his appeal came to be dismissed by the Sessions Judge, Nasik, on 5th May, 1977. According to the case of the prosecution, the accused was running a hotel Swagat at Pimpalgaon Baswant a Taluka-town in Nasik. Information that he was selling liquor without permit was received and as such a trap was laid. Along with the panchas the Police party started from Nasik on 29-10-1973. In the after-noon they reached Pimpalgaon. Panchnama Exh. 10 was drawn showing that Constable Kakad was to act as a punter. He was given a marked 10 rupees currency note and along with panch Suka, he presented himself before the accused who was at the counter. The others in the raiding party had remained scattered nearabout. 2. As the prosecution version proceeds, a bottle of whisky was purchased by the punter on payment of Rs. 6/-. He gave the marked currency note of Rs. 10/- and got back Rs. 4/-. After coming out he gave the necessary signal. In the raid subsequently carried out the returned amount of Rs. 4/- remaining with the punter and the bottle in his hand came to be attached. Similarly, in the premises of the hotel, in the cash box the marked currency note as well as another amount of Rs. 4/- came to be traced. A number of bottles similar to the bottle of whisky sold to punter and others of different varieties were found nearby. They were seized. 3. The accused pleaded not guilty. According to him the whole thing was false. He did not elaborate whether anybody had come to his hotel and whether the Articles as noted in the panchnama Exh. 11 were found in the premises. In the cross-examination of the Investigating Officer, P.W. 3, Head-Constable Vasant Padgal, it is suggested that the raiding party had not at all gone to the hotel nor any incriminating was attached from the possession of the accused but only a false case was filed. 11 were found in the premises. In the cross-examination of the Investigating Officer, P.W. 3, Head-Constable Vasant Padgal, it is suggested that the raiding party had not at all gone to the hotel nor any incriminating was attached from the possession of the accused but only a false case was filed. According to the statement made by the accused he had refused to give free refreshment to the Police and that is why he was involved in a false case. 4. The seized contraband was sent to the Chemical Analyser. His report Exh. 13 shows that the bottle was received with seals intact. It contained brown liquid. It was marked I.G.N. whisky. The report of the Chemical Analyser shows that the sample contained 43% v/v ethyl alcohol in water and no recognisable medicinal ingredient was detected in it. 5. Besides, the Investigating Officer, the panch Suka and punter Kakad came to be examined at the time of the trial. On the evidence before him, the learned Magistrate convicted the accused. 6. In the revision petition, two main points are made by Mr. Kulkarni for the revision petitioner. In the first place, it is said that there is no satisfactory proof that what was found with the accused was contraband liquor. Secondly, it is said that the sale transaction, which is absolutely necessary for proving any offence under section 65(e) of the Bombay Prohibition Act, 1949, is not established. 7. Both these contentions are to be understood on the material elucidated at the time of the trial. The attached Articles were not before the Court. The marked currency note as well as the other amount in the sum of Rs. 4/- taken from punter and another sum of Rs. 4/- found with the accused are said to have been sent to treasury. The mistake in that connection seems to have been admitted but the fact remains that when the trial proceeded, the learned Magistrate was not having before him the muddemal Articles. Similarly, the bottle which was attached as the bottle purchased by the punter was also not available. The judgment of the Appellate Judge would show that this was also treated as an infirmity conceded by the prosecution. Mr. Deshmukh for the State, however, says that since the entire bottle was sent to the Chemical Analyser, the same could not be produced at the time of the trial. The judgment of the Appellate Judge would show that this was also treated as an infirmity conceded by the prosecution. Mr. Deshmukh for the State, however, says that since the entire bottle was sent to the Chemical Analyser, the same could not be produced at the time of the trial. We thus assume that all the contents were consumed by the Chemical Analyser in carrying out the test. It may be stated in fairness that Exh. 13 does not carry any remark showing that the whole of the contents were consumed in analysis. 8. Another aspect to be remembered is that the raid took place on 29-10-1973. Exh. 13 would show that the sample was received by the Chemical Analyser on 29-12-1973 that is to say two months after the seizure. The report itself seems to have been written on 15-3-1974. In this connection, a pointed question was asked to the Investigating Officer as to when the bottle of whisky was sent to the Chemical Analyser. He was unable to reply because it was not he who sent the bottle of whisky to the Chemical Analyser. Thus on the evidence on record, we are unable to find out as to where the bottle was kept after its seizure and who was responsible in sending it to the Chemical Analyser. 9. Thus, we have only the report of the Chemical Analyser Exh. 13 for showing that contraband was found with the accused. The learned Advocate for the revision petitioners says that a satisfactory link between the attached article and the article analysed is not established. I think, the contention is sound and will have to be upheld. It does appear from the evidence that the punter and the constable went to the shop and purchased a bottle of whisky. The same was subsequently attached. But the question which is brought in discussion is whether that particular bottle did reach the Chemical Analyser. Mr. Deshmukh for the State derived assistance from the statement in Exh. 13 showing that the sample bottle received by the Chemical Analyser was in sealed condition, seals were intact and there was also an accompanying letter. But the main question is whether the bottle that came to be sent to the Chemical Analyser in such a condition was the same bottle that was collected in Pimpalgaon on 29-10-1973. 10. 13 showing that the sample bottle received by the Chemical Analyser was in sealed condition, seals were intact and there was also an accompanying letter. But the main question is whether the bottle that came to be sent to the Chemical Analyser in such a condition was the same bottle that was collected in Pimpalgaon on 29-10-1973. 10. The learned Counsel for the revision petitioner, in this connection, draws my attention to the delay in sending of the sample and says that two months time would be considered enough for making any manipulation. So long as good evidence is not coming forth on record to show that the bottle collected in Pimpalgaon remained in the custody or in charge of a particular person and that he kept it safe with him until he sent it to the Chemical Analyser, I suppose an inference in favour of the defence will have to be drawn. 11. In this connection Mr. Kulkarni also relied upon the judgment delivered by Justice Sawant in dispusing of (Bustagav Vitori Frenadez and others v. The State of Maharashtra)1, 1976 U.C.R. (Bom.) 185. There also the accused had denied that any contraband was found with him. The seizure in that case took place on 27-11-1972. The sample bottles were not sent to the Chemical Analyser till 12-12-1972. This delay of 15 days without any explanation and any examination of a person in whose custody the said bottles were kept was looked upon as not showing satisfactorily that the contents which were collected at the time of the seizure of the bottles were the same which were sent to the Chemical Analyser. I suppose that the learned Counsel for revision petitioner rightly derives assistance from this judgment more so when the delay here is of two months and the same remains uncounted for. Consequently, the link between the sample examined by the Chemical Analyser and the alleged contraband collected from the possession of the punter is not established and hence the charge against the accused ought to fail. 12. As regards the contention that the transaction of sale is not established, we may have to take into consideration the panchnama Exh. 10 which speaks of preliminaries undertaken for trapping the accused. It would appear that the punter was to go and purchase a bottle of liquor and for that purpose Rs. 10 currency note was given to him. 12. As regards the contention that the transaction of sale is not established, we may have to take into consideration the panchnama Exh. 10 which speaks of preliminaries undertaken for trapping the accused. It would appear that the punter was to go and purchase a bottle of liquor and for that purpose Rs. 10 currency note was given to him. Even the punter as well as the person who accompanied him viz., panch Suka have given evidence on oath that as arranged they did go to the hotel of the revision petitioner and did purchase whisky. It is their case that the bottle cost Rs. 6/-, Rs. 10 note was delivered and they got back by Rs. 4/-. Exh. 11, panchnama on record shows that the amounts as referred to in the depositions of these two witnesses viz., Rs. 10 currency note and the amount of Rs. 4/- returned to the punter were found. The panchnama also discloses that another sum of Rs. 4/- was found with the accused and the panchnama does speak of more bottles having been found in the search. These bottles were before the Court when the trial continued. However, for the purpose of identifying and for the purpose of corroborating the oral evidence given by these witnesses the currency note or the other sum was not available. Although, documents Exhs. 10 and 11 may have been contemporaneous documents, the Court is deprived of the best evidence which would have influenced the finding in favour of the prosecution. If the evidence of the panch was unassailable, it could have been possible for the Court to come to the conclusion that the transaction of sale is proved on the basis of material available before him. Unfortunately, certain infirmities are found in the evidence of panch also. 13. It is said that the panch is not an independent witness, he had partisan attitude towards the police, he was under their influence and therefore signed the papers as the police wanted. The panchnama proved by the panch would therefore, be of doubtful value. In this respect, it may have to be taken into consideration that although Pimpalgaon appears to be a Taluka town, both panchas were selected from Nasik. No attempt seems to have been made to pick up persons from the locality. That will tend to show that the raiding authority wanted persons who were amenable to him. In this respect, it may have to be taken into consideration that although Pimpalgaon appears to be a Taluka town, both panchas were selected from Nasik. No attempt seems to have been made to pick up persons from the locality. That will tend to show that the raiding authority wanted persons who were amenable to him. 14. On this background the statement of one of the panchas who alone was examined in Court becomes material. His age as given in the panchnama and as given by him is 18 years. In the course of his statement, he says that the other panch was about ¾ years older than him. A look at the panchnama, however, would show that the other panch was 57 years of age. There was thus difference of 39 years between Suka aged 18 years and the other panch who is not examined. The inferences that could be drawn from this discrepancy are either Baburao, whose name appears in the panchnama and who is shown aged 57 years was not really the panch who associated with the raiding party or else Suka himself was not present but he is only toeing the line of the police. Whichever way it is looked upon, it speaks of the manipulation made and hence the evidentiary value of that piece of evidence diminishes to a very large extent. It is on this background that we are also to remember that although the premises were searched, a copy of the seizure memo not given to the accused. It may be a deeatable point whether under the Bombay Prohibition Act it was incumbent upon the prosecution to give such a seizure memo. Its existence would have shown that the panchas had signed just when the raid took place and from the signatures, we could have known about the persons who acted as panchas. Such an inference is not now possible with the consequence that the main transaction of sale becomes doubtful. If that is so, the accused must get benefit of it. 15. In view of the circumstances enumerated above, it is not possible to hold that the guilt is brought home. The evidence about the sale transaction is dubious. There is no good evidence to show that what is alleged to have been found with the accused was contraband liquor. If that is so, the accused must get benefit of it. 15. In view of the circumstances enumerated above, it is not possible to hold that the guilt is brought home. The evidence about the sale transaction is dubious. There is no good evidence to show that what is alleged to have been found with the accused was contraband liquor. The elements of section 65(3) of the Bombay Prohibition Act are not satisfied. Hence the following Order is passed. 16. Rule is made absolute. Revision petition is allowed. The petitioner is acquitted of the offence under section 65(3) of the Bombay Prohibition Act. Bail bond cancelled. Fine, if paid, be refunded. -----